XAVIER DOS SANTOS (Migration)

[2017] AATA 2049

XAVIER DOS SANTOS (Migration) [2017] AATA 2049 (18 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gilson XAVIER DOS SANTOS

CASE NUMBER:  1707393

DIBP REFERENCE(S):  BCC2017/547327

MEMBER:Meena Sripathy

DATE:18 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 October 2017 at 11:05am

CATCHWORDS
Migration – Visitor (Class FA) – Subclass 600 (Visitor) visa – Non-appearance at hearing – Absence of evidence of his funds for continued stay

LEGISLATION
Migration Act 1958, ss 65, 362B, 379A
Migration Regulations 1994, Schedule 2 cl 600.212

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 16 March 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 9 February 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (the Regulations). Relevantly to this case, they include cl.600.212, which requires the visa applicant to satisfy the Minister that the visa applicant has adequate means to support himself or access to adequate means to support himself during the period of intended stay in Australia.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.212 because the delegate was not satisfied, on the basis of an absence of evidence that the applicant had adequate funds or access to adequate funds to support his stay in Australia.

5. On 22 September 2017 the Tribunal wrote to the review 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 review applicant to give evidence and present arguments at a hearing at 9.30 am on 18 October 2017. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

6. No response to the hearing invitation was received and the review 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 review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl.600.212 is met, which requires the Tribunal to be satisfied that the visa applicant has adequate funds or access to adequate funds to support his stay in Australia.

9. The Department sent him a letter on 10 February 2017 requesting him to provide evidence of adequate funds or access to adequate funds to support his stay in Australia. No response was received by the Department.

10. The applicant was invited to attend a hearing before the Tribunal to provide evidence and arguments in relation to issues arising in his case but he has failed to attend the scheduled hearing.  He has provided no further evidence or information to the Tribunal and has made no contact to explain his non-attendance and the hearing or to request a postponement.

11. The Tribunal notes that in his application for the visa he proposed a period of stay from 10 February to 10 May 2017, and it is now well past that period.

12. Given his non participation in the Tribunal process, and in the absence of any evidence of his funds for continued stay or access to funds, and taking into consideration that the period of his proposed stay has now well and truly passed, the Tribunal is not satisfied that the visa applicant has adequate funds or access to adequate funds to support his stay in Australia and finds that the requirements of cl.600.212 are not met.

    DECISION

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

    Meena Sripathy
    Member