Rajinder Kaur (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, made by an applicant who was in Australia at the time of application, decision, and review. The delegate refused the visa because Department records indicated the applicant had departed Australia, thus failing to meet the requirement under cl 600.411 of the Migration Regulations 1994 (Cth) that an applicant in Australia at the time of application must also be in Australia at the time of the visa grant. The applicant sought review of this decision by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the visa, specifically concerning her location in Australia at the relevant times. This involved determining the accuracy of Department records regarding her departure from Australia and assessing the validity of her review application, which required her to be in Australia at the time of application for review. The Tribunal also considered whether it could make a favourable decision based on the available material, which would obviate the need for a hearing.

The Tribunal found that while Department records initially showed the applicant had departed Australia, subsequent amendments, following communication from the applicant and Tribunal staff, indicated she had not left the country. The Tribunal was satisfied that the applicant was in Australia when she applied for the visa, when the delegate made the decision, and when she applied for review. Given that the Tribunal concluded it could make a decision favourable to the applicant based on the material, it did not invite her to a hearing.

The Tribunal remitted the application for reconsideration by the delegate, with a direction that the applicant met the criteria under cl 600.411 of the Regulations.