Hadj Abdallah (Migration)

[2024] AATA 3727

Hadj Abdallah (Migration) [2024] AATA 3727 (29 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Miloud Hadj Abdallah

REPRESENTATIVE:  Mr Fabio Nocilla (MARN: 1801443)

CASE NUMBER:  2415841

HOME AFFAIRS REFERENCE(S):          BCC2023/7414353

MEMBER:Antonio Dronjic

DATE:29 August 2024

PLACE OF DECISION:  Melbourne

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 29 August 2024 at 11:09am

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa – Tribunal received copies of Italian and French National Police Certificates – no disclosable court outcomes recorded against the applicant’s name – decision under review remitted   

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA(2)(a)

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 20 December 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. 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 refused to grant the visa on 25 May 2024 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide overseas police clearance certificates as requested.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Has the applicant provided a statement from an appropriate authority?

7. According to the primary decision record, the application was assessed, and the Department sent an email to the applicant requesting him to provide evidence that he has obtained the required overseas police clearance certificates.

8. The Tribunal is satisfied that the delegate made a request for the applicant to provide a Complete Disclosure certificate from an appropriate authority, in a country where the applicant resides or has resided. In the circumstances, the applicant must provide the requested statements to meet the r.2.03AA.

9. On review, the Tribunal received copies of Italian and French National Police Certificates. The certificates indicate that there are no disclosable court outcomes recorded against the applicant’s name.

10. As the applicant has now provided the requested statements from the appropriate authorities, he therefore meets r.2.03AA(2)(a). There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in reg 2.03AA(2)(b) does not apply.

    DECISION

11. 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).

    Antonio Dronjic
    Member