Paul (Migration)

[2020] AATA 3223

Paul (Migration) [2020] AATA 3223 (5 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mary Priyanka Paul

CASE NUMBER:  1932852

DIBP REFERENCE(S):  BCC2019/4596661

MEMBER:Denise Connolly

DATE:5 June 2020

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 5 June 2020 at 4:07pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa –AFP National Police Clearance provided – no record of criminal offences in the name of the applicant– Police Clearance Certificate from home country provided –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 Immigration to refuse to grant the applicant a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 September 2019. The criteria for a Temporary Activity (Class GG) visa are set out in Schedule 2 to the Migration Regulations 1994 (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: r.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 r.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 r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.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 November 2019 on the basis that the applicant did not meet r.2.03AA because the applicant did not provide police certificates about the applicant’s criminal history from Australian and Sri Lankan authorities, as sought on 4 October 2019.

6. The applicant has now provided those documents to the Tribunal. Accordingly the Tribunal is able to remit the matter so there was no need for a hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant has provided statements by the appropriate authorities that provide evidence about whether or not she has a criminal history.

8. The applicant has now provided to the Tribunal:

   a.Police Clearance Certificate from Police Headquarters, Colombo, Sri Lanka dated 12/11/2019 - stating the applicant, passport number N3509877, has not come to the adverse attention of the Sri Lankan Police in the periods she has been in Sri Lanka since 1989 (the year of her birth)

   b.National Police Certificate - Complete Disclosure issued by the AFP on 7 April 2020 certifying there are no disclosable outcomes recorded against the applicant, born 20 November 1989.

9. The applicant has now provided the statements sought by the delegate, from the appropriate authorities, the AFP and the Sri Lanka Police Headquarters, and therefore meets r.2.03AA(2)(a).

10. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

    Conclusion

11. On the basis of the above findings, the applicant meets r.2.03AA(2).

    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).

    Denise Connolly
    Member