Driubalavu (Migration)

[2024] AATA 256

Driubalavu (Migration) [2024] AATA 256 (25 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Francis Joreti Driubalavu

REPRESENTATIVE:  Mr Bijaya Gurung

CASE NUMBER:  2303167

HOME AFFAIRS REFERENCE(S):          BCC2022/4605851

MEMBER:Member Nathan Goetz

DATE:25 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision of the delegate dated 16 February 2023 refusing to grant the applicant a Visitor (Class FA) Subclass 600 visa.

Statement made on 25 January 2024 at 9:19am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – holds a valid passport – whether unreasonable – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213; Schedule 4, PIC 4021

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant was represented in the review by registered migration agent 1805361.

   BACKGROUND AND CRITERIA FOR THE VISA

3. On 13 February 2021 the applicant was born in Australia. He is not an Australian citizen. That same day, the applicant applied for the visitor visa. At the time of visa application, the Visitor (Class FA) criteria were contained in cl 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and contained a number of streams. The applicant applied for the visa in the tourist stream.

4. On 16 February 2023 the delegate refused to grant the visa on the basis that the applicant did not satisfy Public Interest Criterion (PIC) 4021 which the applicant was required to satisfy for the purpose of cl 600.213. These provide the following:

   600.213

   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.

   (2) If the applicant has not turned 18, the applicant also satisfies public interest criteria 4012, 4017 and 4018.

   4021

   Either:

   (a) the applicant holds a valid passport that:

   (i) was issued to the applicant by an official source; and

   (ii) is in the form issued by the official source; and

   (iii) is not in a class of passports specified by the Minister in an instrument in writing for this clause; or

   (b) it would be unreasonable to require the applicant to hold a passport.

5. On 6 March 2023 the applicant applied to the Tribunal for review of the decision.

6. On 9 January 2024 the Tribunal wrote to the applicant via the representative for two reasons.

7. The first reason was to invite the applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 12 noon on 7 February 2024 so the applicant could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was satisfied that an appearance by MS Teams was appropriate in all the circumstances of the review. Included with the hearing invitation was a ‘Response to hearing invitation’ form that the applicant was directed to complete and return within 7 days. The applicant did not do so.

8. The second reason was to invite the applicant under s 359(2) of the Act to provide the Tribunal with information. The invitation detailed that the visa was refused because the applicant did not provide evidence that the applicant holds a passport or provide evidence that it would be unreasonable to require the applicant to hold a passport. The invitation invited the applicant to provide information, support by corroborative documentary evidence, that the applicant either holds a passport or information that it would be unreasonable to require the applicant to hold a passport. The invitation advised that if the information was not provided by 23 January 2024, or an extension of time was not sought and granted to provide the information requested, the Tribunal hearing would be cancelled and the Tribunal would make a decision on the review without taking any steps to allow or enable the applicant to appear at a Tribunal hearing: ss 359C1, 360(2)(c), 360(3) of the Act.

9. By the end of 23 January 2023, the applicant had not provided the Tribunal with the information it had requested. Therefore, the Tribunal hearing was cancelled, and the Tribunal made a decision on the review.

   CONSIDERATION OF EVIDENCE

10. On 3 November 2022 the delegate wrote to the applicant and requested that the applicant provide the delegate with a copy of his passport within 7 days. The applicant did not respond to this request.

11. On 16 January 2023 the delegate wrote to the applicant and requested that the applicant provide the delegate with a copy of his passport within 7 days. The applicant did not respond to this request.

12. On 9 January 2024 the Tribunal wrote to the applicant visa the representative under s 359(2) and requested the applicant provide the Tribunal with information, supported by corroborative documentary evidence, that the applicant either holds a passport or provide the Tribunal with information that it would be unreasonable to require the applicant to hold a passport. The invitation directed that the information be provided to the Tribunal by 23 January 2024. The applicant did not provide the information requested or seek an extension of time to do so.

    FINDINGS AND REASONS

13. The issue in the present case is whether the applicant satisfies PIC 4021 for the purpose of cl 600.213.

14. If the Tribunal finds that the applicant satisfies PIC 4021 for the purpose of cl 600.213, the correct or preferable decision is to set aside the decision of the delegate refusing to grant the visa and remit the visa application back to the delegate for reconsideration with a direction that the applicant satisfies PIC 4021 for the purpose of cl 600.213.

15. If the Tribunal finds that the applicant does not satisfy PIC 4021 for the purpose of cl 600.213, the correct or preferable decision is to affirm the decision of the delegate refusing to grant the visa.

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

17. There is no evidence that the applicant holds a passport. The Tribunal is satisfied that if the applicant held a passport, it would have been provided to the Tribunal in light of the previous requests from the delegate and the request from the Tribunal.

18. The applicant provided no argument that it would be unreasonable to require the applicant to hold a passport. The Tribunal is not satisfied that it would be unreasonable to require the applicant to hold a passport in the absence of argument to the contrary. There is no evidence that a passport to be held by the applicant is in a class of passports specified by the Minister in an instrument in writing for PIC 4021.

    CONCLUSION

19. As the Tribunal has not been persuaded that it would be unreasonable to require the applicant to hold a passport, he is therefore required to hold a passport issued by an official source in the form issued by an official source and the passport not be in a class of passports specified by the Minister in an instrument in writing for PIC 4021.

20. Therefore, the applicant does not satisfy PIC 4021 for the purpose of cl 600.213.

    DECISION

21. The Tribunal affirms the decision of the delegate dated 16 February 2023 refusing to grant the applicant a Visitor (Class FA) Subclass 600 visa.

    Nathan Goetz

    
    

    Member