Kunoo (Migration)

[2018] AATA 4800

Kunoo (Migration) [2018] AATA 4800 (17 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Zion Kunoo

VISA APPLICANT:  Mrs Rebecca Naw

CASE NUMBER:  1805545

HOME AFFAIRS REFERENCE(S):           BCC2017/3897232

MEMBER:John Billings

DATE:17 October 2018

PLACE OF DECISION:  Melbourne

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:

·cl.600.221 of Schedule 2 to the Regulations.

Statement made on 17 October 2018 at 10:36am

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – sponsored family stream – visit Australian citizen child – identity documents – personal identifiers provided to application processing centre – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 275A, 360
Migration Regulations 1994 (Cth), r 2.04 Schedule 2 cl 600.221

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 16 February 2018 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, Ms Naw, applied for the visa on 20 October 2017. 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 Sponsored Family 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). They include cl.600.221 which relevant requires that the visa applicant intends to visit Australia to visit an Australian citizen who is a child of the applicant.

4. The delegate refused to grant the visa on the basis that Ms Kunoo had not complied with a requirement made under s.275A of the Act to provide one or more personal identifiers. The delegate therefore considered that she was prevented from granting a visa by s.40 of the Act read with r.2.04 of the Regulations: see further below.

5. The review applicant, Ms Kunoo, an Australian citizen child of Ms Naw, applied for review on 2 March 2018.  Ms Kunoo provided a copy of the primary decision to the Tribunal.   

6. Ms Kunoo was represented in relation to the review.

7. There was no hearing. In the circumstances of the case the Tribunal considers that it should decide the review in Ms Kunoo’s favour on the basis of the material before it: see s.360(2)(a) of the Act.

8. Ms Naw is a national of Myanmar, aged 82 years.  She has Australian citizen children and other relatives in Australia, including Ms Kunoo, whom she intends to visit if she is granted the visa. 

9. According to the primary decision, the Department wrote to Ms Naw on 23 October and 20 November 2017 requiring her, pursuant to s.257A of the Act, to provide her “personal identifiers (fingerprint scans and a digital facial photograph) (sic)” at a visa Application Centre or Biometrics Collection centre within 14 days.  (That is not precisely what the letters said: see below).  Ms Nam did not comply with the requirement within the specified timeframe and so the visa was refused.

10. The Tribunal invited Ms Kunoo to provide information to show that Ms Naw provided the required identifiers.

11. Ms Kunoo has now given evidence to the Tribunal that Ms Naw has provided a photograph of her face and shoulders at a relevant Visa Application Centre in Yangon. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The President’s Direction entitled Conducting Migration and Refugee Reviews includes the following, at paragraph 8.2: “As a general rule, where the Minister … or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.”  The issue in this case is therefore whether Ms Naw has provided one or more personal identifiers as required by the Minister pursuant to s.257A of the Act. 

14. “Personal identifier” is defined in s.5A of the Act to mean any of the items set out in the section.  They include fingerprints of a person, and a photograph or other image of a person’s face and shoulders.

15. Section 257A authorises the Minister “to require a person to provide one or more personal identifiers”.

16. Section 40 permits the making of regulations to provide that visas may be granted only if a person has complied with any requirement made under section 257A to provide one or more personal identifiers.  Regulation 2.04 provides that a visa may be granted to a person who has satisfied relevant visa criteria only where, among other things - 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.

17. In an email to the Tribunal dated 11 October 2018, in which she submitted the relevant photograph to the Tribunal, Ms Kunoo wrote “sending finger print scan code” in the Subject line.  The email contains the photograph (which is from Ms Naw’s passport), certified by VFS Global Myanmar Ltd., and evidence of payment to the Visa Application Centre of the biometrics collection fee.  It is not clear, though, whether fingerprints were provided or not.

18. Whether or not Ms Naw provided her fingerprints in addition to her photograph, she has provided the “one or more” personal identifiers that she was required to provide. 

19. The Tribunal has noted that, according to the primary decision, the Department wrote to Ms Naw on 23 October and 20 November 2017 requiring her, pursuant to s.257A of the Act, to provide her “personal identifiers (fingerprint scans and a digital facial photograph) (sic)”.  The Department’s letters in fact required her to provide “personal identifiers in the form of fingerprint scans and/or a digital photograph of [her] face and shoulders”. 

20. The Tribunal is satisfied on the material before it that Ms Naw intends to visit her Australian citizen child if granted the visa. Ms Naw therefore meets the criterion in cl.600.221 of Schedule 2 to the Regulations. Given the Tribunal’s findings in relation to Ms Naw’s personal identifiers, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

21. 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:

    ·cl.600.221 of Schedule 2 to the Regulations.

    John Billings
    Senior Member