Li (Migration)

[2023] AATA 3122

Li (Migration) [2023] AATA 3122 (14 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhiyong Li

CASE NUMBER:  2300462

HOME AFFAIRS REFERENCE(S):          BCC2021/820845

MEMBER:Member Nathan Goetz

DATE:14 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision of 11 January 2023 refusing to grant the applicant a Visitor (Class FA) Subclass 600 and remits the visa application back to the delegate for reconsideration, with a direction that the applicant satisfies the following criteria:

·PIC 4021 for the purpose of cl 600.213 of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 14 September 2023 at 2:53pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – passport held at time of application expired by time of decision – no response to department’s request to provide copy of new passport – new passport obtained between department’s request and decision, and copy provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213, Schedule 4, criterion 4021

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 applicant a Visitor (Class FA) Subclass 600.

   BACKGROUND

2. The applicant identifies as a male citizen of China presently located in Australia.

3. On 11 January 2022 the applicant applied for the visitor visa.

4. On 11 January 2023 the delegate refused to grant the visa on the basis that the applicant did not satisfy PIC 4021 for the purpose of cl 600.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

5. On 14 January 2023 the applicant applied to the Tribunal for review of the decision.

6. On 13 September 2023 the review was constituted to the Member.

   CRITERIA FOR THE VISA

   600.213 

   (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4020 and 4021.

   (2)  If the applicant has not turned 18, the applicant also satisfies public interest criteria 4012, 4017 and 4018.

   4021           

   Either:

   (a)  the applicant holds a valid passport that:

   (i)  was issued to the applicant by an official source; and

   (ii)  is in the form issued by the official source; and

   (iii)  is not in a class of passports specified by the Minister in an instrument in writing for this clause; or

   (b)  it would be unreasonable to require the applicant to hold a passport.

   CONSIDERATION OF MATERIAL

7. In the visa application form which was lodged on 11 January 2022, the applicant identified that he was the holder of a Chinese passport which was issued on 3 August 2012 and valid until 2 August 2022.

8. By the time the delegate made a decision on the visa application on 11 January 2023, that passport had expired. Prior to making the decision, the delegate wrote to the applicant on 1 December 2022 and requested that he provide a colour copy of a valid passport. The applicant did not do so.

9. At the time the applicant applied to the Tribunal for review of the decision on 14 January 2023, the applicant provided the biodata page of a Chinese passport issued in his name on 19 December 2022 which is valid until 18 December 2032.

   FINDINGS AND REASONS

10. The issue in the review is whether the applicant satisfies PIC 4021 for the purpose of cl 600.213 of Schedule 2 to the Regulations.

11. The evidence is that the applicant now holds a valid Chinese passport expiring on 18 December 2032. The passport appears to be from an official source and in a form that is issued by the official source. There is no evidence that the passport is in a class of passports specified by the Minister in an instrument in writing for the purpose of cl 600.213 of Schedule 2 to the Regulations.

12. Accordingly, the correct or preferable decision is to set aside the decision refusing to grant the applicant the visitor visa and to remit the visa application back to the delegate for reconsideration of the criteria for the visitor visa, with an appropriate direction.

    DECISION

13. The Tribunal sets aside the decision of 11 January 2023 refusing to grant the applicant a Visitor (Class FA) Subclass 600 and remits the visa application back to the delegate for reconsideration, with a direction that the applicant satisfies the following criteria:

    ·PIC 4021 for the purpose of cl 600.213 of Schedule 2 to the Migration Regulations 1994 (Cth).

    Nathan Goetz

    
    

    Member