Bisomenike (Migration)

[2023] AATA 2262

Bisomenike (Migration) [2023] AATA 2262 (5 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Yapahu Gedara Bisomenike

REPRESENTATIVE:  Ms Thara Sujith Kumar

CASE NUMBER:  2306254

HOME AFFAIRS REFERENCE(S):          BCC2023/2347339

MEMBER:Jane Marquard

DATE:5 July 2023

PLACE OF DECISION:  Sydney

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

·cl 600. 411 of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 05 July 2023 at 7:34am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – applicant must be in Australia at time of visa grant – applicant departed Australia after application made and offshore at time of department’s decision – returned and onshore at time of tribunal’s decision – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 600.411

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 Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 17 April 2023. The delegate refused to grant the visa on 21 April 2023.

   REASONS FOR THE DEPARTMENT’S DECISION

2. The delegate of the Department of Home Affairs (Department) made the decision on 21 April 2023 on the basis that the applicant was offshore at the time of decision. The applicant was required to be onshore to meet the criteria for the grant of the visa, pursuant to the Migration Regulations 1994 (Cth) (the Regulations).

   TRIBUNAL FINDINGS

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

4. Clause 600.411 of Schedule 2 to the Regulations provides that in order to meet the criteria for the Visitor (Class FA) visa, if the applicant is in Australia at the time of application, the applicant must be in Australia at time of visa grant.

5. According to the decision of the Department on 21 April 2023, the applicant was in Australia at the time of application on 17 April 2023, but she had departed Australia on 20 April 2023 and remained outside the country at the time of the Department decision on 21 April 2023.

6. The applicant is currently in Australia. According to migration records, she arrived in Australia on 4 May 2023 and has remained in Australia since.

7. In light of this evidence, the Tribunal is satisfied that the applicant is onshore at the time of decision, and therefore meets cl 600.411 of Schedule 2 to the Migration Regulations.

8. The Tribunal has concluded therefore that the matter should be remitted for reconsideration.

   DECISION

9. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

   ·cl 600.411 of Schedule 2 to the Migration Regulations 1994 (Cth).

   Jane Marquard
   Member