Mei (Migration)

[2022] AATA 4649

Mei (Migration) [2022] AATA 4649 (1 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhengyang Mei

REPRESENTATIVE:  Mr Sushesh Khanal (MARN: 1678926)

CASE NUMBER:  2214377

HOME AFFAIRS REFERENCE(S):          BCC2021/1691278

MEMBER:Andrew McLean Williams

DATE:1 December 2022

PLACE OF DECISION:  Brisbane

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 01 December 2022 at 4:36pm

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history – Australian Federal Police National Police Certificate 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

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 30 August 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, clause 408.216 of Schedule 2 of the Regulations requires the applicant to meet both PIC 4001 and 4002. 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.

5. The Delegate refused to grant the visa on 26 September 2022 on the basis that the Applicant did not meet reg 2.03AA because a national police certificate had not been provided.

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

   consideration of claims and evidence

7. 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?

8. On 21 October 2022 the Applicant provided the Tribunal with an Australian Federal Police Certificate dated 20 October 2022 indicating that there were no disclosable court outcomes recorded in the Applicant’s name.

   Conclusion

9. On the basis of the above findings, the Applicant meets reg 2.03AA(2)(a).

   decision

10. 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).

    Andrew McLean Williams
    Member