Pokharel (Migration)

[2024] AATA 4227

Pokharel (Migration) [2024] AATA 4227 (24 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dhanraj Pokharel
Mrs Amrita Bhandari
Master Adhik Pokharel

REPRESENTATIVE:  Mr Suraj Khatri (MARN: 0747797)

CASE NUMBER:  2407528

HOME AFFAIRS REFERENCE(S):          BCC2023/6880974

MEMBER:Penelope Hunter

DATE:24 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant and the second named applicant meets the following criteria for a Subclass 408 visa:

·Regulation 2.03AA(2)

Statement made on 24 June 2024 at 2:15pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history statements – certificates from Australia and home country provided to tribunal – no disclosable outcomes – decision made without hearing necessary – members of family unit – 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, cls 408.216, 408.317, Schedule 4, criterion 4001

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 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 applicants Temporary Activity (Class GG) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 28 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 first named applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

4. Additionally, the second and third named applicants as members of the family unit of the first named applicant are required by cl 408.317 to also satisfy PIC 4001.

5. The delegate refused to grant the visas on the basis that a did not meet reg 2.03AA because he had not provided a statement from an appropriate authority.

6. 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.

   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 all applicants were requested, on 10 January 2024, to provide to the Department a statement by an appropriate authority in the form of an Australian Federal Police (AFP) National Police Certificate and an Overseas Police Clearance certificate. Despite this request no documents were received and the delegate refused the visa on 22 March 2024.

9. On review the first named applicant has submitted to the Tribunal an AFP National Police Certificate dated 15 April 2024 and a Nepal Police Headquarters Certificate dated 16 April 2024.  The second named applicant has also provided an AFP National Police Certificate dated 15 April 2024 and a Nepal Police Headquarters Certificate dated 30 April 2024.These all record no disclosable outcomes.

10. As the first named visa applicant and the second named visa applicant have provided a statement from an appropriate authority they therefore meet reg 2.03AA(2)(a).

11. The third named visa applicant is their son, born [date], aged [age] years.

12. There is no evidence that the delegate made a request for the first or second named applicant to provide a completed approved Form 80. However, both the first and second named visa applicants have provided completed approved Form 80.

13. On the basis of the above findings, the first named applicant and second named applicant reg 2.03AA(2).

14. Therefore, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Temporary Activity (Class GG) visa in respect of all the applicants.

    DECISION

15. The Tribunal remits the applications for Temporary Activity (Class GG) visas for reconsideration, with the direction that the first named applicant  and the second named applicant meets the following criteria for a Subclass 408 visa:

    ·Regulation 2.03AA(2).

    Penelope Hunter
    Member