Goreceli (Migration)

[2023] AATA 3058

Goreceli (Migration) [2023] AATA 3058 (23 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ali Goreceli

VISA APPLICANT:  Ms Belkis Turan

CASE NUMBER:  2214832

HOME AFFAIRS REFERENCE(S):          BCC2022/1396854

MEMBER:Member Nathan Goetz

DATE:23 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision of the delegate on 7 October 2022 refusing to grant the visa applicant a Visitor (class FA) Visitor (subclass 600) visa and remits the visa application back to the delegate for reconsideration with a direction that the visa applicant satisfies the following criteria for the grant of the visa:

·     Regulation 2.04 of the Migration Regulations 1994 (Cth)

Statement made on 23 August 2023 at 4:20pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – tourism and family visit – biometric identifiers not provided to department before decision made – fingerprint scans and digital facial photograph provided after visa decision made – review decision made without hearing necessary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 40, 65, 257A, 359(2), 360(2)(a), 363A
Migration Regulations 1994 (Cth), r 2.04

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) Visitor (subclass 600) visa.

   REQUIREMENTS FOR THE GRANT OF THE VISA

2. According to s 40 of the Act, there are ‘circumstances for granting visas’. That section provides the following:

   (1) The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

   (2) Without limiting subsection (1), the circumstances may be, or may include, that, when the person is granted the visa, the person:

   (a) is outside Australia; or

   (b) is in immigration clearance; or

   (c) has been refused immigration clearance and has not subsequently been immigration cleared; or

   (d) is in the migration zone and, on last entering Australia:

   (i) was immigration cleared; or

   (ii)  bypassed immigration clearance and had not subsequently been immigration cleared.

   (3) Without limiting subsection (1), the circumstances may be, or may include, that a person has complied with any requirement to provide one or more personal identifiers made under section 257A.

3. Regulation 2.04 of the Migration Regulations 1994 (Cth) (the Regulations) provides the following 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.

4. According to s 257A of the Act, a person may be required to provide personal identifies. That section provides the following:

   (1) 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.

   (2) Without limiting subsection (1), the purposes referred to in that subsection include any of the purposes referred to in subsection 5A(3).

   Only citizens entering Australia etc. may be required to provide personal identifiers

   (3) If the Minister or officer knows or reasonably believes that a person is a citizen, the person must not be required to provide one or more personal identifiers under subsection (1) unless section 166, 170 or 175 applies in relation to the person.

   When requirement under subsection (1) must be made

   (4) The Minister or an officer must require a person to provide one or more personal identifiers under subsection (1) if prescribed circumstances exist.

   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.

   Other provisions not limited or otherwise affected

   (8) This section does not limit, or otherwise affect, any other provision of this Act under which a personal identifier may be required, provided or presented.

   BACKGROUND

5. On 24 April 2022 the visa applicant Ms Belkis Turan, a female born on 23 July 1964 in Pinarbasi, Izmir, Turkey and a citizen of that country where she is currently located, applied for the visitor visa.

6. She applied for the sponsor family stream of the visa for tourism and a family visit in Australia. She detailed in the visa application form that she will be visiting her son in Australia, as well as his wife and their children who she had not seen due to COVID restrictions. The review applicant is identified as the visa applicant’s son.

7. She indicated that she had previously travelled to Australia and had previously applied for a visa to Australia.

8. The visa applicant’s migration record demonstrates that the applicant travelled previously to Australia as follows:

   ·     On 15 April 2012 the applicant arrived in Australia holding a visitor visa that was valid until 15 July 2012. She departed Australia on 8 July 2012.

   ·     On 27 October 2019 the applicant arrived in Australia holding a visitor visa that was valid until 27 June 2022. She departed Australia on 22 January 2020.

9. Records also demonstrate that subsequent to the delegate decision of 7 October 2022, the visa applicant was granted another visitor visa to come to Australia on 19 October 2022. That visa was valid until 6 May 2023. On 6 May 2023 the visa applicant departed Australia.

10. On 11 August 2022 the delegate wrote to the visa applicant and directed that the visa applicant provide personal identifies (biometrics) for the purpose of s 40 of the Act. In that letter, the delegate indicated that offshore visa applicants in selected overseas locations need to provide personal identifiers in the form of fingerprint scans and a digital facial photograph. The delegate directed the visa applicant to attend a Biometrics Collection Centre within 14 days. The letter provided the visa applicant with a link of Biometrics Collection Centre locations. The letter warned the visa application that a failure to provide the personal identifiers within the time provided in the letter would result in the refusal of the visa, because the grant would be prohibited under s 40 of the Act.

11. There is no evidence on the Department file that the visa applicant did so during the 14 days provided.

12. On 26 August 2022 the delegate again wrote to the visa applicant and directed that the visa applicant to complete the biometrics requirement for the grant of the visa. The visa applicant was given 7 days to do so.

13. There is no evidence on the Department file that the visa applicant did so during the 7 days provided.

14. On 7 October 2022 the delegate refused to grant the visa applicant the visa on the basis that s 40 prevented the grant of the visa because the visa applicant had been directed to provide biometrics and had not done so.

15. On 7 October 2022 the review applicant applied to the Tribunal for review of the decision.

16. On 21 August 2023 the Tribunal wrote to the review applicant under s 359(2) of the Act and invited him to provide information, supported by documentary evidence, that the visa applicant provided fingerprint scans and a digital facial photograph at a Visa Application Centre or Biometrics Collection Centre.

17. The letter advised the review applicant that the information needed to be received by the Tribunal by 4 September 2023 and that a failure to provide the information would result in the review applicant losing any right to appear at a Tribunal hearing. In those circumstances, the Tribunal would make a decision on the review without taking any further steps to allow or enable the review applicant to appear at a Tribunal hearing: ss 360(2)(c), 360(3), 363A of the Act.

18. On 22 August 2023 the Tribunal wrote to the review applicant under s 360 of the Act and invited him to appear at a Tribunal hearing scheduled for 10:00am on 6 September 2023. On the request of the review applicant, the Tribunal rescheduled the hearing to 8 September 2023.

19. Subsequent to the review applicant being invited to appear at the Tribunal hearing and being requested to provide information, the Tribunal was provided information by the Department which meant that that the Tribunal could make a decision favourable to the review applicant.

20. Accordingly, the Tribunal hearing scheduled for 8 September 2023 was cancelled and the Tribunal has made a decision on the review: ss 360(2)(a), 360, 363A of the Act

    CONSIDERATION OF ISSUES AND FINDINGS

21. The issue in the present case is whether the visa applicant has been required under s 257A of the Act to provide one or more personal identifiers and whether the visa applicant has complied with the requirement, or the requirement has been withdrawn.

22. For the following reasons, the Tribunal has concluded that the decision under review should be set aside, and the visa application should be remitted back to the delegate for reconsideration with an appropriate direction.

23. When the review applicant applied to the Tribunal for review of the decision, he provided the following documentation relevant to the decision under review:

    ·     A letter dated 28 September 2022 from the ‘Australian Visa Application Centre – Istanbul Beyoglu – Appointment Letter’ for the visa applicant to attend an appointment at 10:30am on 12 October 2022 for a ‘biometric submission only’ visa category.

    ·     A booking for Turkish Airlines for the visa applicant, review applicant, Ms Jenny Goreceli (the review applicant’s wife), Miss Ayla Gorceli (the review applicant’s daughter) and Miss Leyla Gorceleli (the review applicant’s daughter) for a flight from Izmir, Turkey to Istanbul, Turkey on 11 October 2022.

    ·     A booking for the Hilton Istanbul for 2 nights for 3 adults and 2 children between 11 October 2022 to 13 October 2022.

24. In response to the s 359(2) letter, the review applicant wrote to the Tribunal on 22 August 2023 and claimed that he was physically present at the centre and helped his mother complete the biometrics appointment. He wrote that the organisation that processes this work on behalf of the Department, which he identified as VFS Global, as well as the Department itself, would be able to provide more information. He reattached the appointment booking for 12 October 2022, as well as flight details.

25. That same date, the Tribunal acknowledged receipt of the letter and noted that the document he provided the Tribunal was an appointment booking. The Tribunal advised the review applicant that it required information, supported by documentary evidence, that the visa applicant provided fingerprint scans and a digital facial photograph at a Visa Application Centre or Biometrics Collection Centre. In essence, the Tribunal repeated what was required under the s 359(2) letter and reminded the review applicant to provide the information by 4 September 2023.

26. On 23 August 2023 the Department contacted the Tribunal by email and advised the following:

27. “The program area advised that Departmental records confirm that the applicant attended their appointment on 12/10/2022 and completed required Biometrics.”

28. It is regrettable that the review applicant did not arrange for the biometric appointment to occur prior to the delegate making a decision on 7 October 2022.

29. It is also regrettable that the Department did not write to the Tribunal once they became aware that the visa applicant had attended the biometric appointment on 12 October 2022. If the Department had written to the Department, the visa application could have been dealt with efficiently through a remittal to the delegate for reconsideration almost 10 months ago.

    CONCLUSION

30. The evidence is that the visa applicant was required to undertake the biometric assessment in the letter to her of 11 August 2023. There is no evidence that the requirement was withdrawn by the delegate. The evidence is that the visa applicant has now undertaken the biometric assessment and provided the personal identifiers requested.

31. Accordingly, the visa applicant satisfies the criteria that is under review.

    DECISION

32. The Tribunal sets aside the decision of the delegate on 7 October 2022 refusing to grant the visa applicant a Visitor (class FA) Visitor (subclass 600) visa and remits the visa application back to the delegate for reconsideration with a direction that the visa applicant satisfies the following criteria for the grant of the visa:

    ·Regulation 2.04 of the Migration Regulations 1994 (Cth)

    Nathan Goetz
    Member