Lin (Migration)

[2023] AATA 1122

Lin (Migration) [2023] AATA 1122 (26 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Li-Ho Lin

REPRESENTATIVE:  Mr Yan Zhang (MARN: 0961455)

CASE NUMBER:  2302057

HOME AFFAIRS REFERENCE(S):          BCC2021/1937272

MEMBER:Alan McMurran

DATE:26 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 26 April 2023 at 2:59pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – character test – statement from an appropriate authority – AFP Digital National Certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 408.216; Schedule 4, PIC 4001

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 12 October 2021. 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 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.

5. 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 30 January 2023 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided an Australian Federal Police (AFP) National Police Certificate and therefore did not meet the regulation 2.03AA(2)(a) requirement.

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

8. The Tribunal did not consider a hearing to be necessary in the circumstances of this case as it was able to find in favour of the applicant on the material before it.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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.

    Has the applicant provided a statement from an appropriate authority?

11. On 15 November 2021 and 11 June 2022, the applicant was requested by the Department to provide a statement from an appropriate authority (the AFP in this case). The applicant did not provide the statement as requested within time and did not explain any delay as at the time of the decision.

12. On 17 March 2023, the Tribunal wrote to the applicant and requested the applicant to provide the information by no later than 31 March 2023. The applicant responded the same day and provided from the representative a copy of an AFP Digital National Certificate dated 16 March 2023, showing no disclosable court outcomes.

13. The Tribunal finds therefore that the applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    Conclusion

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

    DECISION

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).

    Alan McMurran
    Member