Veikoso (Migration)

[2024] AATA 2343

Veikoso (Migration) [2024] AATA 2343 (24 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Motekiai Ofa Ki Oakland Veikoso

REPRESENTATIVE:  Miss Anna Maria Alba (MARN: 1461407)

CASE NUMBER:  2402018

HOME AFFAIRS REFERENCE(S):          BCC2023/6603422

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 11:19am

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal history statement – Australia and home country police certificates 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 7 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 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 applicant to meet PIC 4001.

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 refused to grant the visa on 24 January 2024 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided an AFP Certificate and an overseas police clearance certificate from his country of origin, as requested.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. On 19 December 2023, the delegate requested that the applicant provide an Australian Federal Police (AFP) National Police Certificate and Overseas Police Clearance Certificate from his country of origin.

9. The applicant did not comply with the request and the application for the visa was refused.

10. On 12 March 2024, the applicant provided the Tribunal copies of an AFP Certificate dated 26 January2024, and a Tongan Police Record Certificate dated 8 March 2024.

    Conclusion

11. On the basis of the above findings, the Tribunal finds that the applicant now 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).

    Alan McMurran
    Member