HANZAWA (Migration)

[2024] AATA 3147

HANZAWA (Migration) [2024] AATA 3147 (20 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Rina HANZAWA

REPRESENTATIVE:  Miss Miki Aya LIM (MARN: 1797799)

CASE NUMBER:  2413553

HOME AFFAIRS REFERENCE(S):          BCC2024/485231

MEMBER:Sheridan Aster

DATE:20 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 reg 2.03AA(2) of the Migration Regulations 1994 (Cth).

Statement made on 20 August 2024 at 3:09pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history – statement from an appropriate authority – National Police Certificate issued by the Australian Federal Police – Certificate of Criminal Record issued by the National Police Agency of Japan – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 408.216

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 31 January 2024. 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 17 May 2024 on the basis that the applicant did not meet reg 2.03AA because she did not provide the relevant police checks.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant supplied the Tribunal with a National Police Certificate issued by the Australian Federal Police on 29 May 2024 and a Certificate of Criminal Record issued by the National Police Agency of Japan on 17 June 2024.

8. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

9. 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.

10. On the basis of the above findings, the applicant meets reg 2.03AA(2).

    DECISION

11. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets reg 2.03AA(2) of the Migration Regulations 1994 (Cth).

    Sheridan Aster
    Member