Read (Migration)

[2024] AATA 3699

Read  (Migration) [2024] AATA 3699 (3 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mike David Rudi Read

CASE NUMBER:  2211226

HOME AFFAIRS REFERENCE(S):          BCC2021/1533990

MEMBER:Sheridan Aster

DATE:3 October 2024

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 requirements of reg 2.03AA(2) of the Migration Regulations 1994 (Cth).

Statement made on 03 October 2024 at 3:33pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa – applicant supplied the Tribunal with a National Police Certificate issued by the Australian Federal Police – decision under review remitted   

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.03AA(2)(a)

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 5 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, 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. 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. The Tribunal may waive the requirement in reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 2.03AA(3).

5. The delegate refused to grant the visa on 21 July 2022 on the basis that the applicant did not meet reg 2.03AA, which requires the applicant to provide a statement by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history if requested.

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 8 September 2021, the applicant was requested to provide the Department with a statement by an appropriate authority in the form of an Australian Federal Police National Police Certificate. He did not provide the statement within the time provided and on 21 July 2022 the delegate refused to grant the visa.

9. The applicant subsequently supplied the Tribunal with a National Police Certificate issued by the Australian Federal Police on 1 August 2022. The applicant has now provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

10. Given the passage of time, the Tribunal notes that the applicant may be asked to provide a contemporary certificate in order to be assessed against PIC 4001. This will be at the discretion of the Department upon reconsideration of the application.

11. There is no evidence that the delegate made a request for the applicant to provide a completed approved Form 8, therefore the requirement in reg 2.03AA(2)(b) does not apply.

12. On the basis of the above findings, the applicant meets reg 2.03AA(2).

    DECISION

13. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the requirements of reg 2.03AA(2) of the Migration Regulations 1994 (Cth).

    Sheridan Aster
    Member