Clappier (Migration)

[2022] AATA 1037

Clappier (Migration) [2022] AATA 1037 (21 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sacha Clappier

CASE NUMBER:  2002933

HOME AFFAIRS REFERENCE(S):          BCC2019/800937

MEMBER:Mark Bishop

DATE:21 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 21 January 2022 at 9:40am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 – Tourist stream – applicant failed to attend hearing – not satisfied that visa applicant genuinely intends to stay temporarily in Australia – exceptional circumstances don’t exist – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.215

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 29 January 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 9 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 600.215.

5. On 16 December 2021 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 21 January 2022. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

6. It is the practice of the Tribunal to conduct “preliminaries” prior to the commencement of the hearing. These preliminaries are a courtesy to review applicants and basically explain the process of the hearing which will commence at a later time. The Tribunal contacted the applicant on numerous occasions immediately prior to 9.30am on the day of the scheduled review hearing. There was no response to any of these phone calls. The Tribunal also attempted to contact the applicant by phone to commence the hearing and the applicant did not respond to the phone call (for full detail see Case Note number 5).

7. The applicant did not appear before the Tribunal.

8. The review applicant did not appear before the Tribunal for the phone hearing on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) and the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

9. The applicant provided a copy of the decision record to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether cl 600.215 is met.

12. During late 2019 the applicant was hospitalised for an operation.

13. The applicant departed Australia on 15 April 2020.

14. In the present case, the applicant seeks the visa for the purpose of in the words of the applicant “I would like to continue traveling in Australia, I did not have time to make a road trip.”

15. The delegate made the following findings:

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

    ·Under the migration law, a visa cannot be granted unless the applicant meets the relevant legal requirements that are specified in the Act and the Regulations. Regulation 600.215 has not been met by the applicant on the date I made my decision. This provision states that:

    600.215

    ·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.

    ·The applicant last entered Australia on 11 January 2019 as the holder of a TZ417 Working holiday visa. The applicant has remained in Australia continuously since their arrival on 11 January 2019.

    ·The applicant is applying for an extended stay which will result in the applicant being authorized to remain in Australia beyond 12 consecutive months. To satisfy the requirements for the grant of a visitor visa the applicant is required to show exceptional circumstances exist for the grant of the visa. In completing the online application form, the applicant stated that their reasons for applying for an extended stay were – “I would like to continue traveling in Australia, I did not have time to make a road trip.”

    ·I have considered the applicant’s claims against sub regulation 600.215 and I am not satisfied that exceptional circumstances exist for the grant of the visa.”

16. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.215.

17. The applicant did not attend the Tribunal for the mobile phone hearing. The applicant has not provided any material to the Tribunal post February 2020. The applicant did not respond to an email from the Tribunal dated 12 October 2021 that stated ”Our records show that you have departed Australia. Please confirm by reply email that you wish to continue with the application for review. Where required, you should also provide the Tribunal with updated contact details.”

18. The applicant did not provide any information that addressed cl. 600.215 as set out above.

19. The Tribunal is not aware of any exceptional circumstances.

20. For the above reasons the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl 600.215 are not met.

    DECISION

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

    Mark Bishop
    Member