Azari (Migration)

[2022] AATA 1482

Azari (Migration) [2022] AATA 1482 (12 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Karen Farnoush Azari

VISA APPLICANT:  Mrs Tahereh Ranjbarjamalabadi

CASE NUMBER:  2003137

HOME AFFAIRS REFERENCE(S):          BCC2019/973788

MEMBER:Mark Bishop

DATE:12 January 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 12 January 2022 at 12:13pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – biometric data – requirement to provide personal identifiers not complied with – fingerprint scans and digital facial photograph not provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 40, 65, 257A

Migration Regulations 1994 (Cth), r 2.04, Schedule 2, cls 600.221, 600.222

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 on 6 February 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 19 January 2020. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211.

5. This review application was held at the same time as related case number 2002564. The Visa Applicants (VA) in both cases are husband and wife. The Review Applicant (RA) in both cases is Dr Karen Famoush Azari. The RA is the daughter of the VA’s.

6. The RA and VAS’s appeared before the Tribunal on 12 January 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant has satisfied the relevant requirements under the Migration Act specifically s.40 of the Act and r.2.04 and s.257A of the Act.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

10. The delegate made the following findings:

    “Findings

    ·On the basis of all of the information available to me, including the documents and information the applicant provided, I find that I am prevented from granting a Visitor (Tourist) visa to the applicant because of a provision in the Migration Act or the Migration Regulations.

    Reasons

    ·I have assessed the application and the reasons for my decision are detailed below.

    ·A valid application for a Visitor (Tourist) visa has been made by the applicant.

    Biometrics

    ·A visa cannot be granted if the grant is prevented by a provision in the Migration Act or Migration Regulations. In this case, I find that I am prevented by section 40 of the Migration Act from granting a 600 visa to the applicant.

    ·Section 40 of the Migration Act together with regulation 2.04 of the Migration Regulations prevents the grant of the visa if an applicant for a visa, who is outside Australia, has been required by the Minister or a delegate to provide one or more personal identifiers under section 257A, and has not complied with that requirement.

    ·Regulation 2.04 allows for the grant of the visa if the requirement by the Minister or a delegate under section 257A to provide a personal identifier has been complied with or withdrawn, and the applicant has satisfied the criteria in the relevant Part in Schedule 2 of the Migration Regulations.

    ·The applicant has not complied with that requirement, nor has the requirement been withdrawn.

    ·In a letter dated 19 January 2020, the applicant was required by the Minister / by a delegate under section 257A of the Migration Act to provide their personal identifiers (fingerprint scans and a digital facial photograph) at a Visa Application Centre or Biometrics Collection Centre within 14 days after the date the applicant was taken to have received the letter.

    ·The applicant did not comply with this requirement to provide personal identifiers within the specified timeframe.

    Decision

    ·As the applicant has not complied with the requirement to provide personal identifiers within the specified timeframe, nor has the requirement to provide personal identifiers been withdrawn, I am prevented by section 40 of the Migration Act from granting the applicant a visa. I therefore refuse the application by the applicant for a Visitor visa.”

11. The Tribunal examined the departmental files in respect of both VA’s. The Tribunal is satisfied the VA’s were requested to provide certain biometric data prior to the decision of the delegate. The Tribunal is satisfied the VA’s failed to provide the requested biometric data. There is no relevant biometric data on the Departmental or Tribunal files. The Tribunal explained this shortcoming to both the RA and the VA’s. The RA advised the Tribunal she understood the explanation provided by the Tribunal and she advised she had read and understood the delegate’s decision. The VA in case number 2003137 commented the failure to provide the requested biometric detail in time was only a technicality. The Tribunal in response explained the significance of this shortcoming and suggested advice as to how a future new visa application might be made. The RA and VA’s thanked the Tribunal for the advice.

12. There is no evidence before the Tribunal that the required biometric data has been provided as requested.

13. As the visa applicant has not complied with the requirement to provide personal identifiers within the specified timeframe, nor has the requirement to provide personal identifiers been withdrawn, the Tribunal is prevented by section 40 of the Migration Act from granting the applicant a visa. The Tribunal therefore refuse the application by the applicant for a Visitor visa.”

    DECISION

14. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Mark Bishop
    Member