JULIEN (MIGRATION)

[2024] ARTA 135

JULIEN (MIGRATION) [2024] ARTA 135 (29 OCTOBER 2024)

DECISION AND  

REASONS FOR DECISION

Applicant:Miss Caroline Julien

Respondent:  Minister for Home Affairs

Tribunal Number:  2429590

Tribunal:General Member S Durvasula

Place:Sydney

Date:  29 October 2024

Decision:The Tribunal sets aside the decision under review and remits the application for a Training (Class GF) visa for reconsideration, in accordance with an order that the applicant meets the following criteria for a Subclass 407 visa:

·Regulation 2.03AA(2)

Statement made on 29 October 2024 at 9:43am

CATCHWORDS
MIGRATION – Training (Subclass 407) visa – Subclass 407 – applicant provided the Department with a National Police Certificate from the Australian Federal Police – applicant provided a police clearance certificate from the Royal Canadian Mounted Police in Canada –  decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 August 2024 to refuse to grant the visa applicant a Training (Class GF) Subclass 407 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

3. The visa applicant applied for the visa on 28 June 2024. The criteria for a Training (Class GF) 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.

4. 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 407.219A 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).

5. 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.

6. The delegate refused to grant the visa on 8 August 2024 on the basis that the applicant did not meet reg 2.03AA because she had not provided an overseas police clearance certificate from a relevant authority in the countries where she had resided.

7. The applicant was represented in relation to the review.

8. The Tribunal has decided this matter without a hearing, as the decision is wholly in the applicant’s favour and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties, as it is based wholly on documentary evidence (s 106(3) of the Administrative Review Tribunal Act 2024).

9. For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. On 12 July 2024, the applicant provided the Department with a National Police Certificate from the Australian Federal Police, dated 10 July 2024.

12. On 3 July 2024, the Department asked the applicant to provide an overseas police clearance certificate. The applicant did not provide this information before the delegate decided to refuse the visa.

13. On 22 August 2024 the applicant provided the Tribunal with a police clearance certificate from the Royal Canadian Mounted Police in Canada, dated 30 July 2024.

14. The Tribunal finds, on the basis of this evidence, that the applicant has provided statements from an appropriate authority and therefore meets reg 2.03AA(2)(a).

15. There is no evidence before the Tribunal that the applicant was asked to provide a completed, approved Form 80. Therefore, the requirement in reg 2.03AA(2)(b) does not apply.

16. On the basis of the above findings, the Tribunal finds the applicant meets 2.03AA(2).

    DECISION

17. The Tribunal sets aside the decision under review and remits the application for a Training (Class GF) visa for reconsideration, in accordance with an order that the applicant meets the following criteria for a Subclass 407 visa:

    ·Regulation 2.03AA(2)

    Representative for the Applicant:           Miss Sandra Margaret Tempest