Gumba (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to refuse a Visitor (Class FA) visa, Subclass 600, to a citizen of the Philippines. The review applicant, who identified as the sibling of the visa applicant and an Australian citizen, sought to have the delegate's decision set aside. The delegate had refused the visa on the basis that the visa applicant did not satisfy clause 600.232 of Schedule 2 to the Migration Regulations 1994 (Cth), which pertains to sponsorship by a relative.

The primary legal issue before the Tribunal was whether it was required to hold a hearing before making a decision, or if it could decide the matter in favour of the review applicant based on the material before it. Section 360(1) of the Migration Act 1958 (Cth) generally requires the Tribunal to invite an applicant to give evidence and present arguments, but section 360(2)(a) provides an exception if the Tribunal considers it should decide the review in the applicant's favour based on the available material.

The Tribunal found that it was able to make a decision favourable to the review applicant without a hearing. This was because the review applicant had provided birth certificates to the Tribunal, which were not before the delegate. These documents, despite a slight difference in the spelling of the father's name, satisfied the Tribunal that the review applicant and the visa applicant were siblings, thus meeting the requirement of clause 600.232. Consequently, the Tribunal set aside the delegate's decision and directed that the visa applicant satisfied clause 600.232, remitting the matter for the delegate to consider the remaining visa criteria.