Syrmakezis (Migration)

[2021] AATA 2471

Syrmakezis (Migration) [2021] AATA 2471 (21 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Antonios Syrmakezis

CASE NUMBER:  1907324

HOME AFFAIRS REFERENCE(S):          BCC2019/454040

MEMBER:Luke Hardy

DATE:21 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 21 April 2021 at 11:38am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant failed to attend tribunal hearing – genuine temporary stay criterion –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 362, 379

Migration Regulations 1994, Schedule 2, cls 600.211,600.212, 600,222

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 Home Affairs on 12 March 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 13 February 2019. 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 Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and cl 600.212, which requires the visa applicant to satisfy the Minister that the visa applicant has adequate means to support himself or herself; or access to adequate means to support himself or herself; during the period of the applicant’s intended stay in Australia.

4. The applicant arrived in Australia on 18 November 2018 on a three-month visitor (Tourist) visa valid to 18 February 2019. Five days before that visa was due to expire, he applied for an extension for the stated purpose of spending more time with friends. A delegate of the Minister sent the applicant an email on 4 March 2019 asking the applicant to provide evidence of adequate means of support, or of access to the same, for the desired period of stay. The applicant did not reply.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.212 because he did not provide evidence of adequate means to support himself, or of access to adequate means to support himself during the extended period sought.

6. The applicant then applied for review by this Tribunal.

7. On 26 March 2021, the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 20 April 2021. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal might make a decision on the case without further notice. The Tribunal also sent him SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

8. No response to the hearing invitation was received and the applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act, the invitation was successfully transmitted, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

9. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

12. In the present case, the visa applicant seeks the visa for the purposes of spending social time with friends. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

13. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (including cl 600.211(b) and cl 600.212) .

14. The applicant has not made himself available to discuss questions of compliance with any aspects of the Subclass 600 visa. In the circumstances, without more from the applicant, the Tribunal cannot be satisfied that the visa applicant meets that the requirements of cl 600.211 or cl. 600.212 of the Act.

    DECISION

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

    Luke Hardy
    Member