SIMAN (Migration)

[2020] AATA 5782

SIMAN (Migration) [2020] AATA 5782 (2 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Priska Isabella SIMAN

VISA APPLICANT:  Mr Indrianus INDRIANUS

CASE NUMBER:  1916091

HOME AFFAIRS REFERENCE(S):          BCC2019/2767163

MEMBER:Justine Clarke

DATE:2 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 02 October 2020 at 12:58pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – requisite sponsorship – sponsor is the cousin of the visa applicant – definition of ‘relative’ or ‘close relative’ –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, Schedule 2, cl 600.232

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 18 June 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. At the time of this decision, the visa applicant is a 23-year-old national of Indonesia. The review applicant is a 32-year-old Australian citizen.

3. On 29 May 2019, the visa applicant applied for the visa. The visa applicant nominated the review applicant as his sponsor.

4. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case, the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream—not the Tourist stream.

5. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.232. This provision is set out in the refusal decision at page 2.

6. The review applicant provided the Tribunal with a copy of the refusal decision. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.232 because the delegate was not satisfied that the visa applicant had the requisite sponsorship, specifically finding that the review applicant—the nominated sponsor—is the cousin of the visa applicant and noting that a cousin is not one of the familial relationships recognised in the definition of ‘relative’ or ‘close relative’ in r.1.03.   

7. On 19 June 2019, the review applicant applied to the Tribunal for review of the primary decision. The review applicant was unrepresented in this review.

8. On 2 October 2020, the review applicant appeared before the Tribunal by telephone to give evidence and present arguments. The visa applicant was available and willing to provide oral evidence by telephone from Indonesia but, having heard the oral evidence of the review applicant, the Tribunal did not consider it to be necessary. An interpreter in the Indonesian and English languages also attended the hearing by telephone from a further different location but did not need to assist the Tribunal given that the Tribunal elected not to hear oral evidence from the visa applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the visa applicant has the requisite sponsorship, as required by cl.600.232.

11. The review applicant gave oral evidence that she and the visa applicant are first cousins. She explained that her mother and the visa applicant’s mother are sisters. Based on the evidence before it, the Tribunal finds that the visa applicant does not meet cl.600.232(2).

12. The review applicant told the Tribunal that, currently, she was working two jobs. She gave details of her employment. Based on the evidence before it, the Tribunal finds that the review applicant is not working in the roles outlined in cl.600.232(3)(a)–(c). Accordingly, the Tribunal finds that the visa applicant does not meet cl.600.232(3).

13. Further, there is no evidence before the Tribunal to suggest that the visa applicant is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality. Accordingly, the Tribunal finds that the visa applicant does not meet cl.600.232(4).

14. As the Tribunal has found that the visa applicant does not meet cl.600.232(2), (3) or (4), it follows that he also does not meet cl.600.232(1).

15. For the above reasons, the Tribunal finds that the visa applicant does not meet the requirements of cl.600.232.

    DECISION

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

    Justine Clarke
    Member