Paglilo (Migration)

[2024] AATA 2350

Paglilo (Migration) [2024] AATA 2350 (21 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ashima Paglilo

CASE NUMBER:  2407771

HOME AFFAIRS REFERENCE(S):          BCC2023/6614844

MEMBER:Penelope Hunter

DATE:21 June 2024

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 June 2024 at 2:58pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history statement – certificate from relevant authority in home country provided to tribunal – no disclosable 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(1), (2)(a), Schedule 2, cl 408.216, Schedule 4, criterion

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 16 November 2023. 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. The delegate refused to grant the visas on the basis that the applicant did not meet reg 2.03AA because she had not provided a statement from an appropriate authority.

5. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The applicant had provided to the Department a copy of a certificate from the Philippine National Police, however this was not the relevant authority for the purposes of the visa assessment and the Department had written to the applicant to request a certificate from the National Bureau of Investigation. Despite this request no certificate was forthcoming within the time requested.

9. The applicant has submitted to the Tribunal a statement from National Bureau of Investigation of the Republic of the Philippines issued on 29 March 2024. This records no disclosable outcomes.

10. As the applicant has provided a statement from an appropriate authority and she therefore meets reg 2.03AA(2)(a).

11. Given the above finding the appropriate court is to remit the applications for the visa to Minister to consider the remaining criteria for the first named applicant and the second named applicant for a Temporary Activity (Class GG)visa.

    DECISION

12. 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).

    Penelope Hunter
    Member