Ingpen (Migration)

[2019] AATA 4045

Ingpen (Migration) [2019] AATA 4045 (10 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Allan Roy Ingpen

VISA APPLICANT:  Mr Wilfred Robert Ingpen

CASE NUMBER:  1913764

HOME AFFAIRS REFERENCE(S):           BCC2019/2520963

MEMBER:Michael Judd

DATE:10 July 2019

PLACE OF DECISION:  Perth

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

·Section 40 of the Migration Act; and

·Regulation 2.04 of the Migration Regulations.

Statement made on 10 July 2019 at 1:56pm

CATCHWORDS

MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – request for personal identifiers – fingerprint scans and digital facial photograph – evidence provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 40, 65, 257A
Migration Regulations 1994 (Cth), Schedule 2 r 2.04

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 29 May 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 14 May 2019. 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 delegate refused to grant the visa on the basis that the visa applicant did not satisfy section 40 of the Migration Act considered together with regulation 2.04 of the Migration Regulations. These provisions prevent the grant of a Visitor (Class FA) Visa if an applicant for a visa, who is outside of Australia, has been required by the Minister or a delegate to provide one or more personal identifiers under section 257A of the Act and has not complied with that requirement.

4. Regulation 2.04 allows for the grant of a visa if the requirement by the Minister or a delegate under section 257A to provide a personal identifier has been complied with or withdrawn, and the applicant has satisfied the criteria in the relevant part of Schedule 2 of the Regulations. At time of decision the applicant had not complied with the requirement, and nor had the requirement been withdrawn.

5. On 14 May 2019 the department forwarded a letter to the applicant requiring that he provide personal identifiers as required by the Minister under section 257A of the Act. The personal identifiers were to include fingerprint scans and a digital facial photograph. The identifiers were required to be provided at a Visa Application Centre or a Biometrics Collection Centre within 14 days after the date that the applicant was taken to have received the letter. The applicant did not comply with the requirement within the specified timeframe.

6. As the applicant had not complied with the requirement to provide personal identifiers within the specified timeframe, and the requirement had not been withdrawn, the Department decided it was prevented by section 40 of the Act to grant the applicant a visa; the application was thus refused.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The review applicant, being the son of the applicant, applied for Tribunal review on 31 May 2019.  On 25 June 2019 the Tribunal received an email from the review applicant being Dr Allen Ingpen. In the email it was confirmed that the visa applicant had by error taken a copy of the wrong email to the testing and the testing was refused. The email from Dr Ingpen indicated that testing had occurred three days later.

8. The Tribunal has confirmed that the applicant did comply with the biometric requirements on 31 May 2019 which was subsequently cleared on 3 June 2019.

9. For the above reasons the Tribunal is satisfied that the visa applicant has satisfied the provisions of section 40 of the Act considered with Regulation 2.05 of the Regulations.

   DECISION

10. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following perquisites for the granting of a Subclass 600 (Visitor) (Class FA) visa:

    ·Section 40 of the Migration Act; and

    ·Regulation 2.04 of the Migration Regulations.

    Michael Judd
    Member