Manyok (Migration)

[2022] AATA 4605

Manyok (Migration) [2022] AATA 4605 (28 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Malual Manyok

REPRESENTATIVE:  Ms Karyn Anderson (MARN: 9685990)

CASE NUMBER:  2009420

HOME AFFAIRS REFERENCE(S):          BCC2020/1547804

MEMBER:Andrew McLean Williams

DATE:28 October 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:

·PIC 4021 for the purposes of cl 155.222 of Schedule 2 to the Regulations

Statement made on 28 October 2022 at 1:13pm

CATCHWORDS  
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Public Interest Criterion – valid passport requirement – decision under review remitted 

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 360 
Migration Regulations 1994 (Cth), Schedule 2, cl 155.222; Schedule 4, PIC 4021 

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 Home Affairs on 15 May 2020 to refuse to grant the visa applicant (‘the Applicant’) a Return (Residence) (Class BB) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant applied for the visa on 13 May 2020. At the time of application, Class BB contained two subclasses – Subclass 155 (Five Year Resident Return) and Subclass 157 (Three Month Resident Return). In this case, claims have been advanced in respect of Subclass 155. The criteria for a Subclass 155 visa are set out in Part 155 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Relevantly, these include cl.155.222.

3. The Delegate refused to grant the visa on the basis that the Applicant did not meet cl.155.222 because the Applicant did not satisfy Public Interest Criterion 4021.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act. The Applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the Applicant meets Public Interest Criterion 4021.

7. Clause 155.222 requires that the Applicant meets Public Interest Criterion 4021.

8. Public Interest Criterion (‘PIC’) 4021 requires the following:

   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.

9. The Delegate refused the visa as the Applicant’s passport had expired on 7 August 2015, and the Applicant had not provided a valid passport, taken steps to obtain one, and did not provide evidence that it would be unreasonable to require the Applicant to hold a passport.

10. On 26 October 2022, the Applicant’s representative provided the Tribunal with evidence that the applicant now holds a document that satisfies the requirement of PIC 4021(a).

11. Accordingly, the Applicant now meets Public Interest Criterion 4021 for the purposes of
    cl. 155.222 of Schedule 2 to the Regulations.

12. Given the findings made by the Tribunal, above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 155 visa.

    DECISION

13. The Tribunal remits the application for a Return (Residence) (Class BB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 155 (Five Year Resident Return) visa:

    ·Cl.155.222 of Schedule 2 to the Regulations.

    Andrew McLean Williams
    Member