1506141 (Migration)

[2015] AATA 3226

1506141 (Migration) [2015] AATA 3226 (23 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Meshach Alvin Forte

VISA APPLICANT:  Master Alvin Meshach Forte

CASE NUMBER:  1506141

DIBP REFERENCE(S):  OSF2015/033386

MEMBER:Steve Georgiadis

DATE:23 July 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 23 July 2015 at 4:35pm

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 2 May 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 1 May 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 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.600.211, 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.600.221 because the delegate considered that statements made by the applicant’s father, (the review applicant) indicate that the visa applicant intends to migrate permanently to Australia - an activity not permitted on a subclass 600 visa.  

5. The review applicant appeared before the Tribunal on 23 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse, Ms Anita Breath Forte.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 (i.e. as a tourist), 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.

8. In the present case, in the answer to question 29 of the application form, the visa applicant states “Just want to be with dad and the rest of my family and live in peace.” It is evident that the visa applicant seeks the visa for the purpose of migrating to Australia. This is not a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of any last substantive visa held, or any subsequent bridging visa (cl.600.211(a)). In this case, the applicant has not visited Australia before so the Tribunal has no evidence either way of compliance or non-compliance with conditions of any previously held visa.

10. 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 may be subject are as follows (cl.600.611(2) or (3) or (4)):

    ·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.

11. The review applicant is the visa applicant’s biological father.  The Tribunal notes that this was the subject of such a finding by the Circuit Court for Montgomery County, State of Maryland, USA entered on 24 April 2015. The statements made by the visa applicant’s father at the hearing are consistent with those set out in his letter of 6 May 2015 pointing to the visa applicant seeking to migrate and stay in Australia. The Tribunal accepts the review applicant’s oral evidence that the visa applicant is presently being cared for by an aunt in the USA following the death of his mother in February 2015. The Tribunal also accepts the oral evidence provided that the aunt is a professional accountant whose work requires her to travel often and that, for this reason and due to family arrangements, she is not able to care for the visa applicant any more than “a couple of months” or for any extended period.

12. The Tribunal accepts the review applicant’s evidence that as there is no other family carer in the USA for the visa applicant he would therefore be likely to become a ward of the State in the USA. The Tribunal considers this would act as a very strong incentive for the visa applicant to not return to the US after the proposed visit to Australia.  The review applicant also stated that he considered the visa applicant would commence attending school in Australia, beyond 3 months.

13. All these factors lead the Tribunal to conclude that the visa applicant intends to remain in Australia after the end of the proposed stay of 3 months - and thus will not satisfy numerous conditions of his Visitor visa. As aforementioned, this is also not a purpose for which a visa in the Tourist stream may be granted as this category of visa envisages a genuine temporary (short term) visit to Australia.

14. The Tribunal has also considered all other relevant matters (cl.600.211(c)). It is apparent from the review applicant’s status as a citizen of Australia, and the visa applicant’s relationship of close relative (father and son), that there are other migration pathways that would be available to the applicants for the purpose which they seek and they are strongly encouraged to explore these in these circumstances.

15. From the statements and other evidence referred to above, the Tribunal considers that there is not a genuine intention to only visit Australia as a tourist. 

16. For the above reasons, the Tribunal is not 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 not met and that this is not a purpose for which a visa in the Tourist stream may be granted: cl.600.221.

    DECISION

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

    Steve Georgiadis
    Member