Collins (Migration)

[2020] AATA 3926

Collins (Migration) [2020] AATA 3926 (30 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ross Ernest Collins

CASE NUMBER:  1815024

DIBP REFERENCE(S):  BCC2018/1796926 CLF2018/36880

MEMBER:Michael Cooke

DATE:30 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 30 July 2020 at 12:17pm

CATCHWORDS
MIGRATION –Special Category (Temporary) (Class TY) – Subclass 444 visa – 'behavioural concern non-citizen' – applicant failed to attend hearing–criminal conviction– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 362B

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 4 May 2018 to refuse to grant the visa applicant a Special Category (Temporary) (Class TY) Subclass 444 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 24 April 2018. The delegate refused to grant the visa on the basis that he was a ‘behaviour concern non-citizen’

3. The visa applicant was scheduled to appear before the Tribunal on 30 July 2020 to give evidence and present arguments. He did not appear at the scheduled time and has proved to be uncontactable - despite the best efforts of both his representative and the Tribunal on various prior occasions and at the scheduled hearing time.

4. The Tribunal will, therefore, finalise the decision pursuant to s.362B of the Act as the visa applicant did not appear before the Tribunal on the day on which, or at the time and place at which, the visa applicant is scheduled to appear.

5. The visa applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant is ‘behaviour concern non-citizen’ as so defined.

8. The delegate’s decision (on the Tribunal file) disclosed that the visa applicant has been convicted of 2 or more crimes and sentenced to imprisonment for periods that add up to at least one year.

9. Thus, the visa applicant is ‘a behaviour concern non-citizen’ as defined in s.5 of the Act and, subsequently, does not meet the criterion in s32 (2)(a)(ii) of the Regulations.

10. The Tribunal finds the visa applicant is not eligible for the grant of a Special Category (Temporary) (Class TY) Subclass 444 visa.

    DECISION

11. The Tribunal affirms the decision under review.

    Michael Cooke
    Senior Member