Tran (Migration)

[2024] AATA 2347

Tran (Migration) [2024] AATA 2347 (24 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thu Suong Tran

REPRESENTATIVE:  Mr Quan Sy Do (MARN: 1577384)

CASE NUMBER:  2402617

HOME AFFAIRS REFERENCE(S):          BCC2023/6623246

MEMBER:Alan McMurran

DATE:24 June 2024

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 24 June 2024 at 2:07pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history statements – 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(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 lodged 16 February 2024 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 16 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 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 applicant was requested by the delegate on 20 December 2023 to provide the statement.

5. 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. The Form was not requested in this instance.

6. The delegate refused to grant the visa on 29 January 2024 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided the requested statement.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. The delegate refused the visa because the applicant did not respond to the request to provide a statement by an appropriate authority in the form of an Australian Federal Police (AFP) National Police Certificate/Overseas Police Clearance Certificate.

10. On 7 March 2024, the Tribunal requested the applicant provide an AFP certificate and an overseas criminal clearance certificate.

11. On 22 March 2024, the applicant submitted an AFP National Police Certificate dated 22 March 2024.

12. On 12 April 2024, the applicant submitted a Criminal Record Certificate from the Ho Chi Minh Justice Department, dated 3 April 2024.

13. The Tribunal finds that the applicant has provided the Tribunal with the requested certificates/statements in accordance with the regulation.

    Conclusion

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

    DECISION

15. 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).

    Alan McMurran
    Member