Robitaille (Migration)

[2019] AATA 4754

Robitaille (Migration) [2019] AATA 4754 (23 August 2019)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Serge Robitaille

CASE NUMBER:  1831269

DIBP REFERENCE(S):  BCC2018/3485993

MEMBER:Justine Clarke

DATE OF DECISION:  23 August 2019

DATE CORRIGENDUM

SIGNED:30 August 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

Paragraph 5 of decision record referenced a date of 24 October 2019. This date is to be replaced with the date of 24 October 2018.

Justine Clarke
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Serge Robitaille

CASE NUMBER:  1831269

HOME AFFAIRS REFERENCE(S):          BCC2018/3485993

MEMBER:Justine Clarke

DATE:23 August 2019

PLACE OF DECISION:  Melbourne

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

·Public Interest Criterion 4021 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 23 August 2019 at 5:07pm

CATCHWORDS

MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – exceptional reasons – stay exceeds 12 consecutive months – departed before visa ceased – holds valid passport – meets public interest criteria – decision under review remitted 

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.213, 600.215, Public Interest Criterion 4021

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 9 October 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. On 13 September 2018, the applicant applied for the visa. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. 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 criteria includes cl.600.213, subsection (1) of which requires the applicant to satisfy public interest criteria 4001, 4002, 4003, 4004, 4004, 4005, 4011, 4013, 4014, 4020 and 4021. The criteria also include cl.600.215.

4. The applicant provided the Tribunal with a copy of the primary decision. The delegate noted that, at the time of the primary decision, the applicant had last arrived in Australia on 19 October 2017 as a holder of a FA-600 Visitor visa and that he had requested a further stay until 10 September 2019. The delegate noted that this would result in the applicant being authorised to remain in Australia for a total period exceeding 12 consecutive months. The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.215 because the delegate was not satisfied that exceptional circumstances existed for the grant of the visa.

5. On 24 October 2019, the applicant applied to the Tribunal for review of the primary decision.

6. On 12 August 2019, an officer of the Tribunal produced a record of the applicant’s movement records. The movement records evidence the applicant as having departed Australia on 14 May 2019 and his Bridging B visa as having ceased on 27 May 2019.

7. On 19 August 2019, the Tribunal wrote to the applicant noting that he had departed Australia and queried whether he wished to proceed with the application for review. That same day, the applicant advised that he wished to proceed with the application for review. 

8. As the applicant has departed Australia, cl.600.215 no longer applies. In the circumstances, the Tribunal considers it appropriate for it to consider whether the applicant meets Public Interest Criterion 4021 for the purposes of cl.600.213—even though the visa was not refused on this basis.

9. Pursuant to s.360(2)(a) of the Act, the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it. Accordingly, the applicant was not invited to a hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant meets Public Interest Criterion 4021 for the purposes of cl.600.213. Public Interest Criterion 4021 provides:

    Either:

    (a)  the applicant holds a valid passport that:

    (i)was issued to the applicant by an official source; and

    (ii)is in the form issued by the official source; and

    (iii)is not in a class of passports specified by the Minister in an instrument in writing for this clause; or

    (b)  it would be unreasonable to require the applicant to hold a passport.

12. The Department’s file contains a copy of the bio-pages of the applicant’s Canadian passport showing that the passport will expire in October 2023. The Tribunal notes that the application for the visa also gives the applicant’s passport details. On the basis of the evidence before it, the Tribunal is satisfied that the applicant holds a valid passport and meets Public Interest Criterion 4021.   

13. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 600 visa.

    DECISION

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

    ·Public Interest Criterion 4021 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

    Justine Clarke
    Member