Schwalme (Migration)

[2023] AATA 1087

Schwalme (Migration) [2023] AATA 1087 (13 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Simon Schwalme

CASE NUMBER:  2304114

HOME AFFAIRS REFERENCE(S):          BCC2021/1646214

MEMBER:Penelope Hunter

DATE:13 April 2023

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 13 April 2023 at 3:25pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa – applicant has provided Australian Federal Police certificates with “no disclosable court outcomes” – decision under review remitted   

LEGISLATION
Migration Act 1958, ss 65, 360
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 24 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 several public interest criteria (PIC) including 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. 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 reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 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 14 March 2023 on the basis that the applicant did not meet reg 2.03AA because the requested copy of the applicant’s Australian Federal Police National Police Certificate was not supplied.

6. In response to a request for information from the Tribunal the applicant has provided updated submissions and evidence.

7. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The delegate records in their decision record, a copy of which has been submitted to the Tribunal on review, that on 13 January 2023 the applicant was requested to provide a statement by an appropriate authority in the form of an Australian Federal Police National Police Certificate. The Tribunal notes in his submissions the applicant denies having received the request.

10. However, on review the applicant has submitted to the Tribunal a recent Australian Federal Police Digital National Police Certificate dated 17 March 2023 issued to Simon Schwalme date of birth 14 February 1992. These details are consistent with the passport filed by the applicant with the visa application. The certificate certifies that there are no disclosable court outcomes recorded against the applicant.

11. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a) and the delegate is now able to assess whether the applicant meets PIC 4001 and whether cl 408.216 of Schedule 2 is satisfied.

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

13. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 408 visa.

    DECISION

14. 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).

    Penelope Hunter
    Member