2308138 (Migration)

[2024] AATA 2485

2308138 (Migration) [2024] AATA 2485 (4 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2308138

MEMBER:Member Nathan Goetz

DATE:4 July 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision dated 25 May 2023 refusing to grant the visa applicant a Visitor (Class FA) Subclass 600 visa and remits the visa application back to the delegate for reconsideration, with a direction that the visa applicant satisfies the following criteria for the grant of the visa:

·Clause 600.232 of Schedule 2 to the Migration Regulations 1994 (Cth)

DIRECTION:  The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) (the Act) in relation to this review that information that would identify the any applicant or their family members must not be published by the Tribunal.

The Tribunal is satisfied it is in the public interest that this material is not published because it would unreasonably reveal information about a protection visa application (noting a number of provisions in the Act restrict publishing material that identifies protection visa applicants: e.g., ss 91X, 431 and 501K).80

Statement made on 04 July 2024 at 12:46pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – previous compliant family visits – Coptic Christians in Egypt – desire for further family visits – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 600.232

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister who refused to grant the visa applicant a Visitor (Class FA) Subclass 600 visa.

   BACKGROUND AND CRITERIA FOR THE VISA

2. On 13 May 2023 the visa applicant applied for the visitor visa. At the time of visa application, Class FA contained one subclass, namely Subclass 600 with several streams. The criteria for the Subclass 600 are contained in cl 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. In the visa application form, the visa applicant identified that she was a female citizen of Zimbabwe who was born on [date] in that country where she is presently located. She applied for the visa in the sponsored family stream, which required her to provide a completed Sponsorship Form 1149 with her visa application form.

4. According to the sponsorship form, the visa applicant was sponsored for the visa by [the review applicant], who was born on [date] in Zimbabwe and identifies as a male citizen of Australia. He is the review applicant and is identified in the sponsorship form as the visa applicant’s uncle. According to Department records, the review applicant arrived in Australia [in] March 2007 holding a higher education sector visa and was granted another higher education sector visa on 17 May 2007 prior to being granted a protection visa on 9 July 2009. He became an Australian citizen [in] March 2013.

5. On 25 May 2023 the delegate refused to grant the visa applicant the visa on the basis that the visa applicant failed to satisfy cl 600.232. The delegate decision record accurately details the clause as requiring the following:

   600.232

   (1) one of the subclauses (2) to (4) applies.

   (2) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and;

   (a) a relative of the applicant; or

   (b) a relative of another applicant who is a member of the family unit of the applicant; or

   (c) a relative of another application in relation to whom the applicant is a member of the family unit.

   (3) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who:

   (a) is a member of the Commonwealth Parliament or a State Parliament; or

   (b) is a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory; or

   (c) Holds the office of mayor.

   (4) The applicant is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.

   Regulation 1.03 defines ‘close relative’ to mean:

   (a) the spouse or de facto partner of the person; or

   (b) a child, parent, brother or sister of the person; or

   (c) a step-child, step-brother or step-sister of the person.

   Relatives

   In accordance with regulation 1.03, the following individuals may also sponsor a subclass 600 applicant: a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

6. On 9 June 2023 the review applicant applied to the Tribunal for review of the decision.

   CONSIDERATION OF EVIDENCE AND FINDINGS

7. The issue in this review is whether the visa applicant satisfies cl 600.232.

8. If the Tribunal finds that the visa applicant satisfies cl 600.232, the correct or preferable decision is to set aside the decision refusing to grant the visa and remit the visa application back to the delegate for reconsideration with a direction that the visa applicant satisfies cl 600.232.

9. If the Tribunal finds that the visa applicant does not satisfy cl 600.232, the correct or preferable decision is to affirm the decision refusing to grant the visa.

10. The Tribunal considered all the material provided in support of the visa application and the review application.

11. Having considered the matter, the Tribunal was satisfied that it could make a decision that was favourable to the review applicant, meaning that the review applicant is not entitled to appear at a Tribunal hearing: s 360(1), (2), (2)(a), (3) of the Act. Accordingly, the Tribunal made a decision on the review without holding a Tribunal hearing.

12. Included with the visa application form were documents relevant to the issue under review.

13. These documents included:

    ·     A Zimbabwean birth certificate with a date of registration on [date] indicating that the visa applicant [named] was born on [date] to her father [Father A] and her mother [Mother A].

    ·     A Zimbabwean birth certificate with a date of registration on [date] indicating that the review applicant [named] was born on [date] to his father [Mr A] and his mother [Ms A].

    ·     A letter from the [review applicant] dated 25 April 2023 detailing that the visa applicant is his niece.

14. The delegate decision record identifies that from these documents, the delegate was unable to establish that the review applicant was the uncle of the visa applicant.

15. At the time the review applicant applied to the Tribunal for review of the decision, the Tribunal was provided with documents relevant to the issue under review.

16. These documents included:

    ·     A Zimbabwean birth certificate with a date of registration [date] indicating that [Mother A variant] was born on [date] to her father [Mr A variant] and her mother [Ms A].

    ·     A Zimbabwean marriage certificate identifying that [Father A] and [Mother A] were married on [date].

    ·     A statutory declaration made on 30 May 2023 by the review applicant [named] indicating that the visa applicant [named] is the daughter of his sister [Mother A].

    ·     A letter dated 26 May 2023 from the review applicant [named] to the delegate requesting that the decision be reviewed and indicating that the visa applicant is the daughter of his sister.

    ·     An Affidavit made on 27 May 2023 by [Mother A married name] indicating that the review applicant [named] is her brother and that the visa applicant [named] is her daughter.

17. The Tribunal is satisfied on the basis of the birth certificates that the visa applicant [named] is the daughter of [Mother A] and that [Mr A] and [Ms A] are the parents of both [Mother A] and the review applicant [named]. It follows that the visa applicant is the niece of review applicant. The contents of the statutory declaration, letter and affidavit corroborate the evidence provided by the birth certificates. The Tribunal would not have been satisfied about the relationship between the visa applicant and the review applicant in the absence of the birth certificates.

18. The evidence is that the review applicant is an Australian citizen. 'Settled' is defined in regulation 1.03 as 'lawfully resident in Australia for a reasonable period'. Under policy, for this requirement to be met, the sponsor must be lawfully resident in Australia at the time of decision. The evidence is that the review applicant is resident in Australia.

19. Based on all the evidence, the Tribunal is satisfied that the visa applicant is sponsored by a relative who is a settled Australian citizen.

20. Therefore, the visa applicant satisfies cl 600.232(2). This results in the visa applicant satisfying cl 600.232 in its entirety.

    DECISION

21. The Tribunal sets aside the decision dated 25 May 2023 refusing to grant the visa applicant a Visitor (Class FA) Subclass 600 visa and remits the visa application back to the delegate for reconsideration, with a direction that the visa applicant satisfies the following criteria for the grant of the visa:

    · Clause 600.232 of Schedule 2 to the Migration Regulations 1994 (Cth)

    Nathan Goetz

    
    

    Member