Windsor (Migration)

[2024] AATA 714

Windsor (Migration) [2024] AATA 714 (26 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Rihanna Alyshia Windsor

CASE NUMBER:  2303558

HOME AFFAIRS REFERENCE(S):          BCC2023/283570

MEMBER:Melissa McAdam

DATE:26 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the requirements of:

·r. 2.04(b) of the Regulations for the purposes of s. 40(1) of the Migration Act.

Statement made on 26 March 2024 at 4:26pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – provide personal identifiers – biometrics data provided upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 40, 65, 257, 360
Migration Regulations 1994, cl 600.213; r 2.04

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 8 March 2023 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 16 January 2023.

3. The criteria for a Subclass 600 visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, Section 40 of the Act, together with regulation 2.04 of the Regulations, prevents the grant of a visa if an applicant for a visa, who is outside Australia, has been required by the Minister or a delegate to provide one or more personal identifiers under section 257A, and has not complied with the requirement.

4. On 16 January 2023 the applicant was requested under s257A of the Act to provide personal identifiers (fingerprint scans and a facial photograph) at a Visa Application Centre or Biometrics Collection Centre within 14 days after the receipt of the letter.

5. The delegate made the decision on the basis that the applicant had not provided personal identifiers as requested and the deadline had passed and found that s40 of the Act and r.2.04 of the Regulations prevent the grant of the visa.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

7. On 29 February 2024 the Tribunal wrote to the applicant asking for her to provide her personal identifiers as requested by the department in its letter of 16 January 2023

8. On 13 March 2024 the applicant responded to the Tribunal that she had provided her identifiers as requested.

9. The Department’s records confirm that the applicant’s biometrics data was collected for the purpose of her visa application processing, at Port Vila on 7 March 2024.

10. In light of the new evidence received, the Tribunal is satisfied the personal identifiers required by the Department under section 257A have now been received by Department in compliance with section 40 and regulation 2.04 and that this criterion is met. The Tribunal concludes that the matter should be remitted for reconsideration.

    DECISION

11. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration with the direction that the applicant meets the requirements of:

    ·r. 2.04(b) of the Regulations for the purposes of s. 40(1) of the Migration Act.

    Melissa McAdam
    Member