Faizan (Migration)

[2022] AATA 1295

Faizan (Migration) [2022] AATA 1295 (21 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Amal Faizan

REPRESENTATIVE:  Mr Uday Mishra (MARN: 0215810)

CASE NUMBER:  2103771

HOME AFFAIRS REFERENCE(S):          BCC2020/2364891

MEMBER:Joseph Lindsay

DATE:21 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Class FA Subclass 600 Visitor visa.

Statement made on 21 April 2022 at 11:18am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – applicant has never held a substantive visa – administrative delays attributable to the COVID-19 pandemic – no exceptional circumstances – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3001

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 9 March 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 24 September 2020. Given the applicant is a minor, the applicant’s father, Faizan Ameer Ali, spoke on behalf of the applicant for the purposes of the audio hearing on 21 April 2022 to give evidence and present arguments. The applicant’s representative also participated in the hearing. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The issue in the present case is whether the applicant meets the requirements of cl.600.223 of the Regulations, including Schedule 3 criteria 3001.

4. The Tribunal notes that, as part of the application, a copy of the decision from the Department dated 9 March 2021 was provided to the Tribunal. The applicant’s father indicated that the information in the decision record was correct. The applicant’s father made admissions that they lodged an application for an FA600 Visitor- Tourist Stream visa on 24 September 2020 but also admitted that the applicant has never actually held a substantive visa.

5. In consideration of the above, the Tribunal accepts that the applicant has never actually held a substantive visa, and she therefore does not satisfy the criteria in Schedule 3, including criteria 3001. Accordingly, the Tribunal finds that the applicant does not meet cl.600.223 and is therefore unable to meet the criteria for the grant of the Class FA Subclass 600 Visitor visa.

6. However, the Tribunal accepts that there may have been administrative delays attributable to Covid-19 that may have impacted on the applicant’s migration status. The Tribunal has carefully considered the request to refer this matter for Ministerial intervention. However, Ministerial intervention is exercised in rare cases and only where there are unique and/or exceptional circumstances and the Tribunal is not of the view, based on the applicants’ circumstances, that administrative delays attributable to Covid-19 have largely caused problems to the applicant in obtaining the correct visa, are unique and/or exceptional circumstances such that the Tribunal should refer this case.

7. The Tribunal notes it is open to the applicant to make a direct request for Ministerial intervention.

   DECISION

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

   Joseph Lindsay
   Member