Kim (Migration)

[2023] AATA 1385

Kim (Migration) [2023] AATA 1385 (12 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chansoo Kim

REPRESENTATIVE:  Ms Jungmin Lee (MARN: 1279501)

CASE NUMBER:  2212116

HOME AFFAIRS REFERENCE(S):          BCC2020/2765970

MEMBER:Penelope Hunter

DATE:12 April 2023

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)

Statement made on 12 April 2023 at 5:49pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history statement – AFP digital national police certificate provided to tribunal – no disclosable court outcomes – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 2.03AA(2)(a)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 5 December 2020. 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 of Schedule 2 of the Regulations requires the applicant to meet certain public interest criteria including 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 4 August 2022 on the basis that the applicant did not meet reg 2.03AA because a copy of the applicant’s Australian Federal Police National Police Certificate was not supplied.

6. In response to a request for information from the Tribunal the applicant has provided updated submissions and evidence.

7. In light of the new evidence received, the Tribunal was able to find in favour of the applicant on the basis of the material before it and it dispensed with a hearing pursuant to s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The delegate records in their decision record, a copy of which has been submitted to the Tribunal on review, that on 21 December 2020, 9 April 2021,13 July 2021 and 18 February 2022 the applicant was requested to provide a statement by an appropriate authority in the form of an Australian Federal Police National Police Certificate.

10. The Tribunal is satisfied that this request was reasonable and on 15 March 2023 the Tribunal sent to the applicant a further request to provide a copy of his Australian Federal Police National Police Certificate.

11. In response to this request the applicant submitted an Australian Federal Police Digital National Police Certificate dated 28 March 2023 issued to Chansoo Kim date of birth [Date]. These details are consistent with the passport filed by the applicant with the visa application. The certificate certifies that there are no disclosable court outcomes recorded against the applicant.

12. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a) and the delegate is now able to assess whether the applicant meets PIC 4001 and whether cl 408.216 of Schedule 2 is satisfied.

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

14. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 408 visa.

    Conclusion

15. 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).

    Penelope Hunter
    Member