Herman (Migration)

[2024] AATA 2451

Herman (Migration) [2024] AATA 2451 (2 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Devan Herman

CASE NUMBER:  2402830

HOME AFFAIRS REFERENCE(S):          BCC2023/6640909

MEMBER:Sheridan Aster

DATE:2 July 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 02 July 2024 at 3:46pm

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history – Australian Federal Police National Police Certificate and Royal Canadian Mounted Police Criminal Record provided upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 408.216; Schedule 4, Public Interest Criterion 4001; r 2.03AA

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 January 2024 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 17 November 2023. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of 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. Clause 408.216(1) of Schedule 2 to the Regulations requires the applicant to satisfy a number of public interest criteria, including Public Interest Criterion (PIC) 4001. Regulation 2.03AA applies where a person is required to satisfy PIC 4001 or 4002: reg 2.03AA(1).

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. The delegate in this case refused to grant the visa on the basis that the applicant did not provide police checks as requested.

5. The applicant has since provided the Tribunal with a Criminal Record issued by the Royal Canadian Mounted Police on 23 February 2024 a National Police Certificate issued by the Australian Federal Police on 5 June 2024. The Australian certificate reports no discosable court outcomes, however the Canadian certificate reports a number of convictions.

6. As he has now provided the requested documents, the applicant meets reg 2.03AA(2). Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

   DECISION

7. 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