Rajinder Kaur (Migration)

[2023] AATA 232

Rajinder Kaur (Migration) [2023] AATA 232 (9 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rajinder Kaur

CASE NUMBER:  2217474

HOME AFFAIRS REFERENCE(S):          BCC2022/1526918

MEMBER:Nathan Goetz

DATE:9 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) Subclass 600 visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·600.411 of Schedule 2 to the Regulations

Statement made on 09 January 2023 at 10:21am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant was in Australia when she applied for the visa – applicant was in Australia when a decision was made on the visa – applicant was in Australia at the time she applied for review – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister to refuse to grant the applicant a Visitor (Class FA) Subclass 600.

2. The applicant applied for the visa on 3 May 2022. On 9 November 2022 the delegate refused to grant the visa. On 29 November 2022 the applicant applied to the Tribunal for review of the decision.

3. After considering the evidence, the Tribunal determined that it could make a decision favourable to the applicant based on the material it had. Therefore, the applicant was not invited to appear at a Tribunal hearing: ss 360(2)(a), 360(3) of the Act.

   CONSIDERATION AND FINDINGS

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

5. According to the visa application form, the applicant is a 66-year-old female citizen of India who was born in that country and, at the time she applied for the visa, was located in Australia. She indicated that the purpose of her request for a further stay in Australia was so she could be present for the birth of grandchildren.

6. The delegate refused to grant the visa because the delegate was not satisfied that the applicant met the circumstances applicable to the grant of the visa as required by cl 600.411 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). This required that if the applicant was in Australia at the time of the visa application, she needed to be in Australia at the time of the grant of the visa.

7. In the delegate decision record, the delegate recorded that Department records demonstrated that at the time of the decision, the applicant had departed Australia and remained outside of Australia. This meant that she did not meet the circumstances applicable to the grant of the visa, and the visa was refused.

8. When the applicant applied to the Tribunal for review of the decision, she attached several documents, including a statutory declaration made on 29 November 2022. She declared that she had not departed Australia. This was inconsistent with the Department record generated on 1 December 2022 by Tribunal staff, which clearly showed that the applicant departed Australia on 12 September 2022.

9. On 1 December 2022 Tribunal staff wrote the applicant and raised with her the validity of her review application in light of the fact that Department records showed that she was not in Australia. It was a requirement for her review application to be valid that she was in Australia at the time of the review application being made. The applicant was invited to comment on the validity of the review in writing by 15 December 2022. She did not respond in writing, but the Tribunal accepts that there was nothing further to add to her statutory declaration where she declared that she remained in Australia.

10. Notes recorded by Tribunal staff show that the applicant made telephone calls to the Tribunal registry and advised that she was in Australia. She was directed to speak with the Department to amend the Department records. It appears that the applicant did so with success. The Department record generated on 13 December 2022 demonstrate that the applicant’s record was amended to demonstrate that she had not left Australia as earlier claimed.

11. The Tribunal is satisfied that the applicant was in Australia when she applied for the visa, was in Australia when a decision was made on the visa, and was in Australia at the time she applied for review.

    CONCLUSION

12. Given the evidence, the Tribunal is satisfied that the applicant satisfies cl 600.411 of Schedule 2 to the Regulations.

13. The proper course is for the Tribunal to remit the matter back to the delegate for reconsideration of the visa application with an appropriate direction concerning cl 600.411.

    decision

14. The Tribunal remits the application for a Visitor (Class FA) Subclass 600 visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

    ·600.411 of Schedule 2 to the Regulations

    Nathan Goetz

    
    

    Member