1513935 (Migration)

[2016] AATA 3756

1513935 (Migration) [2016] AATA 3756 (20 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Krishna Dutta SADAULA

CASE NUMBER:  1513935

DIBP REFERENCE(S):  BCC2015/2777201 CLF2015/64113

MEMBER:Linda Symons

DATE:20 April 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 20 April 2016 at 10:43am

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 Immigration on 23 September 2015 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant first entered Australia on 28 September 2010 as the holder of a subclass 676 Visitor visa. He departed Australia on 7 November 2010. He returned to Australia on 27 June 2014 as the holder of a subclass 600 Visitor visa which was valid until 27 June 2015. On 11 June 2015, he was granted a Bridging visa which was valid until 10 July 2015. On 24 June 2015, he was granted a Bridging visa which expired on 30 June 2015. On 30 June 2015, he was granted another subclass 600 Visitor visa which was valid until 24 September 2015. On 23 September 2015, he was granted a Bridging visa in association with the application under review. 

3. The applicant applied to the Department of Immigration and Border Protection (the Department) for the visa on 23 September 2015 whilst in Australia. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case, the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

4. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Each applicant must satisfy the primary criteria, which consists of common criteria and criteria applicable to the stream sought. A criterion which is common to each stream is cl.600.215.

5. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.600.215. The delegate found that the grant of the visa sought would result in the applicant being authorized to stay in Australia for more than 12 consecutive months as the holder of one or more Visitor visas.  The delegate was not satisfied that exceptional circumstances exist for the grant of the visa. On 14 October 2015, the applicant applied to the Tribunal for review of that decision. 

6. The Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it, pursuant to s.360 of the Act, and did not proceed to a hearing in this case.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

8. The issue in this case is whether cl.600.215 applies and, if so, whether it is met. Clause 600.215, as it applies in this case, provides as follows:

   If the grant of the visa would result in the applicant being authorized to stay in        Australia for more than 12 consecutive months as the holder of:

   (a)      one or more Visitor visas; or
              (b)      a Subclass 417 (Working Holiday) visa; or
              (c)      a Subclass 462 (Work and Holiday) visa;
              exceptional circumstances exist for the grant of the visa.

9. This criterion is one that must be satisfied at the time of the Tribunal’s decision.

10. The applicant has now been present in Australia for approximately 22 months. He had been the holder of 2 subclass 600 Visitor visas and 3 Bridging visas. He has been the holder of a Bridging visa since 23 September 2015.  

11. The Tribunal considers that the grant of a subclass 600 Visitor visa in the Tourist stream now would not result in the applicant being authorized to stay in Australia for more than 12 consecutive months as the holder of a Visitor visa because the period of stay between his previous Visitor visa and the current Visitor visa is broken by a period on a Bridging visa. Therefore, the requirement that the applicant demonstrate that exceptional circumstances exist for the grant of the Visitor visa does not apply in this case as the condition for that requirement is not met.

12. In view of the above, the Tribunal finds that cl.600.215 does not apply to the applicant.

13. As the significant criterion in this case does not apply, the Tribunal is unable to make a decision that the criterion is met. Therefore, the Tribunal will consider an alternative criterion.

14. Clause 600.223(1) is a criterion that applies to applicants in the Tourist stream. It requires that, if the applicant was in Australia at the time of application and held a substantive temporary visa, the visa was not a subclass 426 (Domestic Worker (Temporary) – Diplomatic or Consular) visa or a subclass 403 (Temporary Work (International Relations)) visa.

15. The records of the Department indicate that the applicant was in Australia at the time of application on 23 September 2015 and held a subclass 600 Visitor visa. He did not hold one of the visas prescribed in cl.600.223(1). Therefore, the Tribunal finds that the requirements of cl.600.223(1) are met.

16. In view of the above, the Tribunal will remit the application to the Department to consider the remaining criteria for the visa.   

    DECISION

17. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 600 (Visitor) (Class FA) visa:

    ·Cl.600.223(1) of Schedule 2 to the Regulations.

Linda Symons
          Member