Gimenez (Migration)

[2024] AATA 2875

Gimenez (Migration) [2024] AATA 2875 (15 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Edgardo Leonel Gimenez

CASE NUMBER:  2410463

HOME AFFAIRS REFERENCE(S):          BCC2023/6842138

MEMBER:Wan Shum

DATE:15 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

·Regulation 2.03AA(2)

Statement made on 15 July 2024 at 2:41pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history – statement from an appropriate authority – digital National Police Certificate – ‘Other Commonwealth Purpose’ – criminal record certificate issued by the Ministry of Justice and Human Rights of Argentina – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 408.216; Schedule 4, PIC 4001

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 November 2023. The criteria for a Temporary Activity (Class GG) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: reg 2.03AA(1). In this case, cl 408.216(1) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

4. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement from a relevant authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

5. The delegate found that the applicant did not satisfy the criterion in reg 2.03AA because the applicant did not provide the information or the documents requested and therefore did not satisfy PIC 4001.

6. The applicant sought review of that decision and provided a copy of a digital National Police Certificate issued by the Australian Federal Police and a criminal record certificate issued by the Ministry of Justice and Human Rights of Argentina.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets reg 2.03AA. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s criminal history.

9. The Department wrote to the applicant requesting a statement by an appropriate authority in the form of an Australian Federal Police (AFP) National Police Certificate for the purpose of Immigration/Citizenship and an Overseas Police check. The applicant did not provide an Immigration/Citizenship check from the AFP or overseas police check before the decision was made.

10. During the review, the applicant provided a copy of a criminal record certificate, with translation, issued by the Ministry of Justice and Human Rights of Argentina on 29 April 2024. However, the digital National Police Certificate from the AFP was for ‘Other Commonwealth Purpose’. The Tribunal wrote to the applicant requesting an AFP Certificate for Immigration/Citizenship and the applicant then provided such a certificate dated 12 July 2024.

11. As the applicant has now complied with the request to provide evidence of an AFP certificate and police clearance certificate for each country overseas he has resided in for at least 12 months in the past 10 years, the Tribunal finds that the applicant satisfies the criterion in reg 2.03AA(2)(a).

12. As the requested documents have been provided on review, the delegate is now able to assess whether the applicant meets PIC 4001.

13. The Tribunal remits the matter with a direction that the applicant satisfies reg 2.03AA. The Minister is now in a position to undertake consideration of whether the applicant meets cl 408.216 and the remaining criteria for the grant of a Subclass 408 visa.

    DECISION

14. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

    ·Regulation 2.03AA(2).

    Wan Shum
    Member