Polart (Migration)

[2023] AATA 3134

Polart (Migration) [2023] AATA 3134 (18 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thomas Thierry Paul Polart

CASE NUMBER:  2305584

HOME AFFAIRS REFERENCE(S):          BCC2022/1807113

MEMBER:David Crawshay

DATE:18 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 408 visa:

·Regulation 2.03AA(2)

Statement made on 18 September 2023 at 10:39am

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history statement – no statement from home country provided to department – genuine and current statement provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2)(a), Schedule 2, cl 408.216(1),

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). The applicant applied for the visa on 22 May 2022. 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.

2. 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(1) of Schedule 2 of the Regulations requires an applicant to meet PIC 4001 and 4002. That applicant is therefore required to satisfy the criterion in r.2.03AA(2). Regulation 2.03AA(2)(a) requires that, if requested, that 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, that 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 that applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for an applicant to provide a completed Form 80.

3. The delegate refused to grant the visa on 3 April 2023 on the basis that the applicant did not meet r.2.03AA because he had not provided an overseas police certificate.

4. On 1 September 2023, the applicant provided a document translated as “Extract from the Central Criminal Records Register” and dated 16 August 2023 from the Federal Public Service Justice Department of Belgium. The Tribunal is satisfied that the police check is genuine and current. It therefore accepts that it is valid for the purposes of r.2.03AA(2)(a).

5. Because the applicant has already provided a current National Police Check from the Australian Federal Police, he satisfies r.2.03AA(2)(a) in its entirety. As he has already submitted a completed Form 80, he satisfies r.2.03AA(2)(b).

   DECISION

6. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 408 visa:

   ·Regulation 2.03AA(2).

   David Crawshay
   Member