Sepulveda Mendoza (Migration)

[2024] AATA 2838

Sepulveda Mendoza (Migration) [2024] AATA 2838 (1 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Barbara Andrea Sepulveda Mendoza

REPRESENTATIVE:  Mr Pierre-Axel Ducos (MARN: 2218001)

CASE NUMBER:  2413063

HOME AFFAIRS REFERENCE(S):          BCC2024/482421

MEMBER:P. Maishman

DATE:1 August 2024

PLACE OF DECISION:  Perth

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 01 August 2024 at 3:58pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history statement – genuine and current certificates from Australia and home country 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, 408.216, Schedule 4, criterion 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 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 31 January 2024. 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 16 May 2024 on the basis that the applicant did not meet reg 2.03AA because she did not provide a police certificate from the Australian Federal Police or any other countries she had lived in for more than 12 months in the past 10 years.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant provided the Tribunal with a copy of the delegate’s decision record which summarises the visa application. The delegate says the applicant was requested in writing on 22 March 2024 to provide a statement from an appropriate authority in the form of an Australian Federal Police Certificate/Overseas Police Clearance Certificate. On 16 May the Department had not received a response and refused the applicant’s visa.

8. 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?

9. On 24 June 2024 the applicant provided the Tribunal an Australian Federal Police certificate dated 30 May 2024 and a Chilean Special Purpose Background Certificate dated 20 May 2024. The Tribunal is satisfied that these police checks are genuine and current and that they are valid for the purposes of r 2.03AA(2)(a).

10. The applicant has provided a statement from an appropriate authority and therefore meets reg 2.03AA(2)(a).

    Conclusion

11. On the basis of the above findings, the applicant meets reg 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).

    P. Maishman
    Member