Raj Kumar (Migration)

[2018] AATA 1683

Raj Kumar (Migration) [2018] AATA 1683 (21 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raj Kumar Raj Kumar

CASE NUMBER:  1713141

DIBP REFERENCE(S):  BCC2017/1914067

MEMBER:Ian Berry

DATE:21 May 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 21 May 2018 at 11:23am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Practice and procedure – Lost right to Tribunal hearing – Extension of stay in Australia over 12 months – No exceptional circumstances

LEGISLATION
Migration Act 1958, ss 65, 359, 359C, 360, 363A
Migration Regulations 1994, Schedule 2 cl 600.215

CASES
Hasran v MIAC [2010] FCAFC 40

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 2 June 2017 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 May 2017. The delegate refused to grant the visa on the basis that the applicant is required to demonstrate that exceptional circumstances exist for the grant of the visa. 

3. On 30 April 2018 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide information in writing, the substantive requests for information concerned – information that:

   a.the applicant genuinely intending to stay temporarily in Australia for the purpose for which the visa is granted;

   b.complying substantially with the conditions to which the last substantive Visa was given; circumstances of his ability to be able to support himself while in Australia and the exceptional circumstances supporting the application for the grant of a visitor visa which would result in the applicant state for more than 12 consecutive months.

4. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 14 May 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is that the applicant is in Australia related to the death of his brother.  It is noted by the Tribunal the applicant having been granted a FA-600 visitor visa on 19 November 2015, arriving in Australia on 22 November 2015.

8. The applicant was then granted a Bridging A Visa on 22 February 2016 for which had a cessation date of 3 March 2016.

9. The applicant then applied for a FA-600 visitor visa on 3 March 2016 which had a cessation date of 21 May 2016.

10. The applicant then applied for and was granted a bridging Visa A on 24 May 2016 with a cessation date on 24 May 2016.  On that same day he was granted a FA-600 visitor visa which had a cessation date on 30 November 2016.

11. On 5 December 2016 the applicant then applied for and was granted a Bridging visa A with an expiry date of 5 December 2016.  On that same day he was granted and FA-600 visitor visa expiry date of 31 May 2017.

12. On 2 June 2017 the applied for a received a bridging Visa as he had made his  application for this visa on 30 May 2017.  The only reasons given by him were in his visa application and they were “change in circumstances want to stay to remember deceased brother and before ritual after death”. He sought an extension with the end date of 20 December 2017, meaning he would have been in Australia for over 12 months and must give exceptional reasons for that discretion to be exercised as required by cl.600.215.

13. By reason of the applicant not accepting the Tribunal’s invitation to provide further evidence by not responding to the 359(2) letter, there is very little upon which the Tribunal is able to consider the applicant’s application as having any substance without an explanation from the applicant. 

14. The Tribunal is not satisfied there is an exceptional reason or circumstance upon which it could find to allow the applicant  staying in Australia for a period exceeding 12 months.

15. The Tribunal finds that the reasons given by the applicant do not satisfy cl. 600.215 as  his reasons to not show any exceptional circumstances existing for the grant of the visa. 

    DECISION

16. The tribunal affirms the decision not to grant the visa applicant a visitor (Class FA) visa.

    Ian Berry
    Member