Mohamed Rafa'ee (Migration)

[2017] AATA 2127

Mohamed Rafa'ee (Migration) [2017] AATA 2127 (3 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Saiyidah Aisyah Mohamed Rafa'ee

CASE NUMBER:  1702939

DIBP REFERENCE(S):  BCC2017/279437

MEMBER:Mila Foster

DATE:3 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 03 November 2017 at 2:12pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Requirement to be in Australia if application was made in Australia – Applicant departed Australia – Applicant not in Australia at time of grant

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.411

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 30 January 2017 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 20 January 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist 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). The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. For the following reasons, I have concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Although the applicant was refused the visa on the basis of a failure to satisfy cl.600.211, on the review the issue is whether she satisfies cl.600.411 of Schedule 2 to the Regulations which requires an applicant who was in Australia at the time of application to be in Australia at the time of the grant of the visa.

6. As indicated in the delegate’s decision, a copy of which the applicant submitted to the Tribunal, the applicant was in Australia on a Visitor visa when she made the (further) visa application on 20 January 2017 to extend her stay.  However, according to the Department’s movement records, she departed Australia on 14 May 2017 on a Bridging visa A, which does not permit re-entry, and her previous Visitor visa had ceased. The Tribunal wrote to the applicant advising her of this information and invited her to comment on the information. No response was received to the invitation.

7. On the basis of the information in the applicant’s movement record, I find that the applicant is not in Australia and there is no prospect of her returning in the foreseeable future. I thus find that she cannot satisfy cl.600.411 and hence cannot be granted the Visitor visa. I thus must affirm the decision under review.

   DECISION

8. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

   Mila Foster
   Member