Singh (Migration)

[2024] AATA 2345

Singh (Migration) [2024] AATA 2345 (26 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr BIikesh Dev Singh
Mrs Manisha Ale

REPRESENTATIVE:  Mr Abu Siddque

CASE NUMBER:  2402256

HOME AFFAIRS REFERENCE(S):          BCC2023/6598817

MEMBER:Penelope Hunter

DATE:26 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 meet the following criteria for a Subclass 408 visa:

·Regulation 2.03AA(2)

Statement made on 26 June 2024 at 10:48am

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 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(1), (2)(a), Schedule 2, cl 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 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 15 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. Additionally, cl 408.317 of Schedule 2 also requires the second named applicant to meet PIC 4001. Both applicants are therefore required to satisfy the criterion in reg 2.03AA(2).

4. The delegate refused to grant the visas on the basis that the first and second named applicants did not meet reg 2.03AA because they had not provided a statement from an appropriate authority.

5. In light of the new evidence received, the Tribunal was able to find in favour of the first and second named applicants on the basis of the material before it and it dispensed with a hearing pursuant to s 360(2)(a) of the Act.

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

   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. 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.

8. The applicants were requested 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 25 January 2024.

9. The first named applicant has provided to the Tribunal an AFP National Police Certificate dated 1 February 2024  and a Government of Nepal Police Clearance Certificate dated 5 March 2024. In addition, the second named visa applicant has provided an AFP National Police Certificates dated 1 February 2024 and a Government of Nepal Police Clearance Certificate dated 13 February 2024. These all record no disclosable outcomes for both the first and second named applicants.

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

11. There is no evidence that the delegate made a request for either the first or second named applicant to provide a completed approved Form 80, therefore the requirement in reg 2.03AA(2)(b) does not apply.

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

13. 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 the applicant.

    DECISION

14. 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 meet the following criteria for a Subclass 408 visa:

    ·Regulation 2.03AA(2).

    Penelope Hunter
    Member