1504432 (Migration)

[2015] AATA 3079

1504432 (Migration) [2015] AATA 3079 (9 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Peter James Martin

VISA APPLICANT:  Ms Qiaoying Yao

CASE NUMBER:  1504432

DIBP REFERENCE(S):  BCC/2015/250320

MEMBER:Adrian Ho

DATE:9 July 2015

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:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 09 July 2015 at 3:57pm

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 23 January 2015 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 20 January 2015. 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 Sponsored Family 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.600.211, 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211.

5. The review applicant appeared before the Tribunal on 9 July 2015 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her husband. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

11. On the evidence, the visa applicant has never held a visa for Australia.  There are no considerations relevant to cl.600.211(a).

12. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.612):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

13. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

14. At hearing, the review applicant spoke of his laser skin clinic in Tasmania and of meeting his wife in 2013 in China on one of his frequent business trips.  He spoke of their marriage last year in July and of how she has worked for his business in China since April 2014 which is involved in exporting skin products to China.  He spoke of wishing that his wife could visit Australia to see if she likes it, which would help them make plans about where they might wish to settle.  He spoke of having been very busy with the business in the last 12 months; only have recently had time to prepare and lodged the offshore partner visa application which is now on foot.

15. He offered to place a security for the visa in the amount of AUD 7000.

16. He indicated that he sought the visitor visa for 12 months based on representations made to him by the Department; but that a visit of 3 months would be sufficient for his wife to form a view about life in Australia.

    Findings

17. The tribunal accepts based on the Department acknowledgement letter than the visa applicant has made an offshore partner visa application, and that she will need to be offshore in order to complete that application process.

18. The tribunal accepts that there is an incentive for the visa applicant not to breach any of the above visitor visa conditions, so as not to jeopardise the outcome of the partner visa application.

19. As informed to the review applicant, the tribunal does not consider its role in this review to include an assessment of the genuineness or otherwise of the relationship.  The tribunal makes no findings in this regard other than to find based on the marriage certificate that the marriage is in place.

20. The offer to place a security which would appear to be modest in comparison to the review applicant’s substantial business activities, provides an additional modicum of support in favour of the application.

21. The tribunal accepts based on the marriage that the parties have a legitimate reason for the visa applicant to visit which does not require elaborate explanation.

22. On the evidence, the tribunal is satisfied that the visa applicant has sufficient incentive to depart Australia and that she intends to comply with the above visa conditions.

23. For the above reasons the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are met.

    DECISION

24. 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:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Adrian Ho
    Member