Wavell (Migration)

[2023] AATA 1435

Wavell (Migration) [2023] AATA 1435 (15 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Christopher James Wavell

CASE NUMBER:  2304964

HOME AFFAIRS REFERENCE(S):          BCC2022/2626664

MEMBER:Antonio Dronjic

DATE:15 May 2023

PLACE OF DECISION:  Melbourne

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 15 May 2023 at 12:09pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – character test – statement from an appropriate authority – National Police Certificate - Complete Disclosure – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA; Schedule 2, cl 408.216; Schedule 4, PIC 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 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 11 July 2022. 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 r.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 refused to grant the visa on 17 March 2023 on the basis that the applicant did not meet reg 2.03AA because the applicant did not provide a statement by an appropriate authority in the form of a Form 80 as requested.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Has the applicant provided a statement from an appropriate authority?

7. The Tribunal is satisfied that the delegate made a request for the applicant to provide a Form 80 and Complete Disclosure certificate from an appropriate authority, which in this case is the AFP, in a country where the applicant resides or has resided: Australia. In the circumstances, the applicant must provide the requested statement to meet the r.2.03AA.

8. On review, the Tribunal received a copy of a National Police Certificate - Complete Disclosure dated 21 April 2023 issued by the AFP. The certificate indicates that there are no disclosable court outcomes recorded against the applicant’s name.

9. On 4 May 2023, the applicant submitted a form 80 as requested by the Department.

10. As the applicant has now provided the requested statement from the appropriate authority, and Form 80 he therefore meets r.2.03AA(2)(a).

11. On the basis of the above findings, the applicant 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).

    Antonio Dronjic
    Member