Hoff (Migration)

[2024] AATA 252

Hoff (Migration) [2024] AATA 252 (25 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Patient Hoff

VISA APPLICANT:  Ms Tracy Kadiatu Jallabah

CASE NUMBER:  2306061

HOME AFFAIRS REFERENCE(S):          BCC2023/49371

MEMBER:Member Nathan Goetz

DATE:25 January 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 25 January 2024 at 3:45pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – sponsored by a ‘relative’ of the applicant – no response to s.359(2) invitation – first cousin – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 600.232

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.

   BACKGROUND AND CRITERIA FOR THE VISA

2. On 29 January 2023 the visa applicant applied for the visitor visa. At the time she applied for the visa, Class FA contained one Subclass with different streams. The Subclass is 600 and the criteria for the grant of the Subclass 600 is contained in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The visa applicant applied for the visa in the sponsored family stream.

3. On 16 March 2023 the delegate refused to grant the visa applicant the visa on the basis that the visa applicant did not satisfy cl 600.232. This clause requires the following:

   600.232

   (1) one of the subclauses (2) to (4) applies.

   (2) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and;

   (a) a relative of the applicant; or

   (b) a relative of another applicant who is a member of the family unit of the applicant; or

   (c) a relative of another application in relation to whom the applicant is a member of the family unit.

   (3) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who:

   (a) is a member of the Commonwealth Parliament or a State Parliament; or

   (b) is a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory; or

   (c) Holds the office of mayor.

   (4) The applicant is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.

4. On 2 May 2 May 2023 the review applicant applied to the Tribunal for review of the decision.

5. On 9 January 2024 the Tribunal wrote to the review applicant for two reasons.

6. The first reason was to invite the review applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 2:00pm on 7 February 2024 so the review applicant could give evidence and present arguments relating to the issues arising in relation to the decision under review. The review applicant was directed to complete and return a ‘Response to hearing invitation’ form that was included in the hearing invitation within 7 days of receipt. The review applicant did not do so.

7. The second reason was to invite the review applicant under s 359(2) of the Act to provide the Tribunal with information in writing by 23 January 2024. The invitation was accompanied by a warning that a failure to provide the information requested, or seek and be granted an extension of time to provide the information requested, by 23 January 2024 would result in the Tribunal hearing being cancelled and the Tribunal making a decision on the review without taking any steps to allow or enable the review applicant to appear at a Tribunal hearing. This was because a failure to provide information requested under s 359(2) of the Act meant that the review applicant did not have an entitlement to appear at a Tribunal hearing: ss 359C1, 360(2)(c), (360)(3) of the Act.

8. By 23 January 2024, the review applicant had not provided the Tribunal with the information it requested. Accordingly, the Tribunal hearing was cancelled and the Tribunal made a decision on the review.

   CONSIDERATION OF EVIDENCE

9. In the visa application form submitted on 29 January 2023, the visa applicant identified that she was presently outside of Australia and located in Liberia where she is a citizen. She indicated that she was applying for a visitor visa in the sponsored family stream and the purpose of visiting Australia was a family visit.

10. She indicated that her contact in Australia is a cousin named Ms Patience Hoff, who she identified as an Australian permanent resident. She also indicated that she had a nephew in Australia named Mr Maxwell Toure, who was identified as an Australian citizen.

11. Attached to the visa application form was a completed Form 1149 – Application for sponsorship for Sponsored Family Visitors. The form was completed by Ms Patience Hoff and it indicated that the visa applicant is her first cousin.

12. The delegate refused to grant the visa on the basis that the visa applicant was not sponsored as required by cl 600.232. The delegate provided the reasons why the visa applicant was not sponsored by a ‘relative’. The delegate was silent on whether the applicant was sponsored in accordance with cl 600.232(3) or (4), but there is nothing in the visa application form to suggest that the visa applicant claimed that she was sponsored by the class of person provided in cl 600.232(3) or (4).

13. On 9 January 2024 the Tribunal wrote to the review applicant under s 359(2) of the Act and invited the review applicant to provide the Tribunal with information. In that invitation, the Tribunal noted that the delegate refused to grant the visa applicant the visa on the basis that she did not satisfy cl 600.232 and provided the review applicant with a copy of that clause.

14. The invitation further noted that ‘relative’ is defined in Regulation 1.03 of the Regulations to be a ‘close relative’ or a ‘grandparent, grandchild, aunt, uncle, niece or nephew, or step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew and provided the review applicant with a copy of that regulation. The invitation also noted that a ‘close relative’ was defined in the same Regulation to be a ‘spouse or de facto partner of the visa applicant, a child, parent, brother or sister of the visa applicant.

15. The invitation invited the review applicant to provide information to demonstrate that the review applicant was a ‘relative’ as defined under the Regulations for the grant of the visitor visa. The invitation warned the review applicant that if the review applicant did not provide the Tribunal with the information requested, or seek and be granted an extension of time to do so, by 23 January 2024, the Tribunal hearing scheduled for 7 February 2024 would be cancelled and 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. This was due to the fact that a failure to provide information requested under s 359(2) of the Act, or seek and be granted an extension of time to do so, resulted in the review applicant no longer having an entitlement to appear at a Tribunal hearing: s 359C1, 360(2)(c), 360(3) of the Act.

16. By 23 January 2023, the review applicant had not provided the Tribunal with the information requested, nor sought an extension of time to do so. Accordingly, the Tribunal hearing was cancelled and the Tribunal made a decision on the review. The review applicant has not claimed to be a ‘relative’ as required for the purpose of cl 600.232(2), or to be a person who is able to sponsor the visa applicant under cl 600.232(3) or (4).

    FINDINGS AND REASONS

17. The issue in this review is whether the visa applicant is sponsored by a person as provided under cl 600.232.

18. For the following reasons, the Tribunal has decided to affirm the decision under review.

19. The visa application form, and sponsorship form, identifies the review applicant as the visa applicant’s cousin. A cousin is not a ‘relative’ as provided in Regulation 1.03 for the purpose of cl 600.232.

20. The material does not suggest that the review applicant is a member of the Commonwealth Parliament, a State Parliament, or a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory; or that the review applicant holds office as mayor. Nor is there evidence that the visitor visa is sponsored by a Commonwealth, State, or Territory government agency or instrumentality.

21. Therefore, the visa applicant is not sponsored by a person or entity as provided in cl 600.232(2), (4) or (4).

22. As the visa applicant is not sponsored by a person or entity as provided in cl 600.232(2), (3) or (4), it follows that the visa applicant does not satisfy cl 600.232.

23. As the visa applicant does not satisfy cl 600.232, the correct or preferable decision is to affirm the decision under review.

    DECISION

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

    Nathan Goetz

    
    

    Member