Rai (Migration)

[2017] AATA 2303

Rai (Migration) [2017] AATA 2303 (10 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ivan Rai

VISA APPLICANT:  Mrs Shakti Joshi Rai

CASE NUMBER:  1701047

DIBP REFERENCE(S):  BCC2016/3598698

MEMBER:Tigiilagi Eteuati

DATE:10 November 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 10 November 2017 at 2:31pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Personal identifiers not provided

LEGISLATION
Migration Act 1958, ss 40, 65, 257A
Migration Regulations 1994, r 2.04, Schedule 2 Part 600

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 15 November 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The review applicant appeared before the Tribunal on 10 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

3. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether the visa applicant has complied with the requirement that she provide the Department with personal identifiers. If she has not she does not meet the criteria for the grant of a visa.

5. The visa applicant applied for the visa on 28 October 2016. 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 Sponsored Family stream.

6. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). An additional criterion is provided by section 40 when read with regulation 2.04. The effect of these provisions is that, where a person has been required under section 257A to provide one or more personal identifiers, to be granted a visa, the person must have complied with the requirement or the requirement must have been withdrawn.

7. In the present case the visa applicant was sent a letter by the Department on 28 October 2016 requiring her to provide personal identifiers “in the form of fingerprint scans and/or a digital photograph of their face and shoulders by attending a Visa Application Centre or Biometrics Collection Centre…”.

8. The Minister’s delegate refused the visa applicant’s application on the basis that she had not complied with the requirement to provide personal identifiers.

9. At the hearing, the review applicant, the visa applicant’s son, indicated that the applicant’s mother did not receive the email from the Department requiring her to provide personal identifiers. He said that his mother had provided his email address to the Department as her contact email address in relation to the visitor visa application but that he had not been checking his email and received the email after the visa application had been refused.

10. The review applicant conceded that the visa applicant had not complied with the requirement to provide personal identifiers and to this day has not provided the personal identifiers to the Department.

11. The review applicant indicated that he had attempted to apply for a further visitor visa on his mother’s behalf but that when he tried to lodge the application electronically, the computer system did not let him do so, he says, on the basis that his mother’s previous application had been refused.

12. The Tribunal is satisfied that the visa applicant had not complied with the requirement to provide personal identifiers. Therefore, the applicant is prevented by section 40 of the Act from being granted a visa.

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

    Tigiilagi Eteuati
    Member