Truong (Migration)

[2024] AATA 2821

Truong (Migration) [2024] AATA 2821 (16 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Du Sang Truong
Mrs Thai Ngoc Hua
Master Minh Phu Truong
Miss Bao Anh Truong

REPRESENTATIVE:  Ms Thi Anh Thu Luu (MARN: 1385008)

CASE NUMBER:  2409738

HOME AFFAIRS REFERENCE(S):          BCC2022/2144775

MEMBER:Wan Shum

DATE:16 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Business Skills (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 188 visa:

·Regulation 2.03AA(2)

Statement made on 16 July 2024 at 4:49pm

CATCHWORDS

MIGRATION – Business Skills (Provisional) visa – Subclass 188 Business Innovation and Investment (Provisional) – evidence of criminal history – AFP Certificate for Immigration/Citizenship and Vietnam Criminal Records Certificate No 2 provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 188.213; Schedule 4, Public Interest Criterion 4001; r 2.03

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 Business Skills (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 12 June 2022 with the first named applicant (the applicant) seeking to satisfy the primary criteria while the other applicants were included as members of his family unit. The criteria for a Business Skills (Provisional) 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 188.213(1) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 and 4002. 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 found that the applicant did not satisfy the criterion in reg 2.03AA because the applicant did not provide the information or the documents requested.

6. The applicant sought review of that decision and provided a copy of a National Police Certificate issued by the Australian Federal Police and a Police certificate (Number 2) from Vietnam.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets reg 2.03AA. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s criminal history.

9. The applicant had not provided an Immigration/Citizenship check from the AFP or a Police certificate (Number 2) from Vietnam to the Department before the decision was made.

10. When making the application for review, the applicant provided a copy of an AFP Certificate for Immigration/Citizenship dated 11 April 2024 and a copy of a Criminal Records Certificate No 2 issued by the Office of Criminal Records, Vietnam with translation.

11. As the applicant has now complied with the request to provide evidence of police clearance certificate for each country he has resided in for at least 12 months in the past 10 years, the Tribunal finds that the applicant satisfies the criterion in reg 2.03AA(2)(a).

12. As the requested documents have been provided on review, the delegate is now able to assess whether the applicant meets PIC 4001 for the purposes of cl 188.213(1).

    DECISION

13. The Tribunal remits the applications for Business Skills (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 188 visa:

    ·Regulation 2.03AA(2)

    Wan Shum
    Member