Girmez (Migration)

[2019] AATA 4093

Girmez (Migration) [2019] AATA 4093 (8 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Eser Girmez

VISA APPLICANT:  Mrs Ebru Girmez

CASE NUMBER:  1901326

HOME AFFAIRS REFERENCE(S):           BCC2018/5355370

MEMBER:Linda Holub

DATE:8 July 2019

PLACE OF DECISION:  Sydney

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

·Section 457 of the Act.

Statement made on 08 July 2019 at 4:39pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – Tourist stream – personal identifiers provided – biometric results processed – fingerprint scan – digital facial photograph – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 40, 65, 257A, 360(2)(a), 457
Migration Regulations 1994 (Cth), r 2.04, Schedule 2, cl 600

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 9 January 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 29 November 2018. 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 (the Regulations). Relevantly to this case, Section 40 of the Act, together with regulation 2.04 of the Regulations, prevents the grant of a visa if an applicant for a visa, who is outside Australia, has been required by the Minister or a delegate to provide one or more personal identifiers under section 257A, and has not complied with the requirement.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600 as personal identifiers were not provided under section 257A.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether section 257A is met.

Regulation 2.04 of Section 40 of the Act states that;

Reg 2.04 Circumstances in which a visa may be granted

For subsection 40(1) of the Act, a visa may be granted to a person who has satisfied the criteria in the relevant Part of Schedule 2 only if:(a) the circumstances set out in that Part exist; and

(b) if the person has been required under section 257A of the Act to provide one or more personal identifiers—the person has complied with the requirement, or the requirement has been withdrawn.

Section 257A of the Act states:

257A Person may be required to provide personal identifiers

Subject to subsection (3), the Minister or an officer may, in writing or orally, require a person to provide one or more personal identifiers for the purposes of this Act or the regulations.

……

How personal identifiers must be provided

(5) If a person is required to provide one or more personal identifiers under subsection (1), those personal identifiers must be:

(a) provided by way of one or more identification tests carried out by an authorised officer or an authorised system ; or

(b) if another way is specified by the Minister or officer—provided in that specified way.

Note: If the types of identification tests that the authorised officer may carry out are specified under section 5D , then each identification test must be of a type so specified.

(6) If paragraph (5)(b) applies, the person must comply with any requirements specified by the Minister or officer in providing one or more personal identifiers in the way specified under that paragraph.

Multiple requirements for personal identifiers may be made

(7) A person may be required to provide one or more personal identifiers under subsection (1):

(a) more than once; and

(b) whether or not the person has previously complied with a requirement under this Act or the regulations to provide one or more personal identifiers.

1. The applicant made a valid application for a Visitor (class) FA visa on 29 November 2018. However the applicant did not provide personal identifiers (fingerprint scans and a digital facial photograph) under section 257A of the Act to the Department, as required by section 40 of the Act and regulation 2.04.

2. A search of Departmental records shows that on 10 January 2019 the visa applicant’s biometric results were processed by the Department.

3. The personal identifiers required by the Department under section 257A have now been received by Department in compliance with section 40 and regulation 2.04,

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

11) Based on the above information, the Tribunal is satisfied that the visa applicant has provided the Minister with the required personal identifiers for the grant of a visitor visa under section 40 and regulation 2.04 of the Migration Act.

DECISION

12) The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the requirements of:

·Section 257A of the Act.

Linda Holub
Member