Tokon (Migration)

[2024] AATA 3483

Tokon (Migration) [2024] AATA 3483 (16 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Charles Tokon

REPRESENTATIVE:  Mrs Amber Halverson (MARN: 1687610)

CASE NUMBER:  2423121

HOME AFFAIRS REFERENCE(S):          BCC2024/514146

MEMBER:Karen McNamara

DATE:16 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

·Regulation 2.03AA(2)

Statement made on 16 September 2024 at 11:23am

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history – Australian Federal Police National Police Certificate provided upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 408.216; Schedule 4, Public Interest Criterion 4001; r 2.03AA

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 Mr Charles Tokon (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 1 February 2024. The criteria for a Temporary Activity (Class GG) visa are set out in Schedule 2 to the Migration regulations 1994 (the regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. The decision record provided to the Tribunal by the applicant, records that on 25 June 2024, the delegate refused to grant the visa because the applicant did not satisfy cl.408.216 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant satisfied PIC 4001 as prescribed in reg 2.03AA(2) of the regulations.

4. 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 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

5. 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 r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

6. The delegate refused to grant the visa on the basis that the applicant did not meet r.2.03AA because he failed to provide the appropriate police clearance certificate or other statement (however described) provided by an appropriate authority in each of the countries, where he had resided for a total of 12 months or more in the last 10 years.

7. The applicant lodged an application for review with the Tribunal on 16 July 2024.

8. On 19 August 2024, the applicant submitted to the Tribunal a National Police Certificate issued by the Australian Federal Police on 15 August 2024.

9. In accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in favour of the applicant on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal to give evidence in relation to the decision under review.

10. 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 in all countries of residence.

11. The applicant has now provided at review, a Police Clearance Certificate to the Tribunal, from a relevant authority in countries where the applicant has resided that provides evidence as to whether or not the applicant has a criminal history. The applicant has provided a National Police Certificate issued by the Australian Federal Police on 15 August 2024, advising that the applicant has a disclosable court outcome dated 26 May 2023.

12. Whilst the applicant has a recorded criminal history in Australia, he has however provided a statement from an appropriate authority and therefore meets r.2.03AA(2).

    DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

    ·Regulation 2.03AA(2).

    Karen McNamara
    Member