Ito (Migration)

[2020] AATA 4757

Ito (Migration) [2020] AATA 4757 (21 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Moeka Ito

CASE NUMBER:  1912198

DIBP REFERENCE(S):  BCC2019/25876

MEMBER:R. Skaros

DATE:21 August 2020

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)(a).

Statement made on 21 August 2020 at 1:41pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa –breached PIC4001–AFP National Police Clearance provided – no record of criminal offences in the name of the applicant– decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA(2)(a), 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 Immigration to refuse to grant the applicant a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 January 2019. The criteria for a Temporary Activity (Class GG) visa are set out in Schedule 2 to the Migration Regulations 1994 (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: r.2.03AA(1). In this case, cl.408.216 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.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 r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.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 26 April 2019 on the basis that the applicant did not meet r.2.03AA because she did not provide an Australian Federal Police (AFP) Complete Disclosure Certificate as requested by the Department.

6. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history.

9. On 4 March 2019 the Department requested that the applicant provide an AFP Complete Disclosure Certificate. On 22 March 2019 she provided a copy of an AFP Standard Disclosure Certificate, which the delegate did not consider sufficient to demonstrate that the applicant satisfied PIC 4001. The delegate found that the applicant did not meet r.2.03AA(2) or cl.408.216 of the Regulations.

10. The applicant has provided the Tribunal with an AFP Complete Disclosure Certificate dated 16 May 2019. The certificate stated that the applicant had no disclosable court outcomes. The applicant also provided a copy of a Certificate of Criminal Record issued on 29 May 2019 by the Commissioner General of the Japanese National Police Agency which sated that she did not have any applicable criminal record.

11. On 18 August 2020 the applicant provided the Tribunal a more recent copy of an AFP Complete Disclosure Certificate, dated 7 August 2020. This certificate also stated that the applicant had no disclosable court outcomes. The Tribunal finds that the applicant has provided the required statement from an appropriate authority and therefore meets r.2.03AA(2)(a).

12. On the basis of the above findings, the applicant meets r.2.03AA(2)(a).

    DECISION

13. 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)(a).

    R. Skaros
    Senior Member