1506910 (Migration)

[2016] AATA 3043

1506910 (Migration) [2016] AATA 3043 (18 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Eileen Lee

CASE NUMBER:  1506910

DIBP REFERENCE(S):  CLF2015/30771

MEMBER:Nicola Findson

DATE:18 January 2016

PLACE OF DECISION:  Perth

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

Statement made on 18 January 2016 at 4:27pm

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 29 April 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, a 4 year old citizen of Malaysia, applied for the visa on 26 April 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.600.211 because the delegate was not satisfied that the visa applicant intended a genuine visit and would abide by the visa conditions.

5. The applicant’s mother, Ms Angelina Boon Yen Voon, appeared before the Tribunal on 17 September 2015 and at a resumed hearing on 15 October 2015, to give evidence and present arguments on behalf of her daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by her registered migration agent, Mr Matthew Rumley.  However, Mr Rumley did not attend the Tribunal hearing.

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

   VISA HISTORY

8. The applicant has travelled to, and spent significant periods of time in, Australia since 2013. The applicant last arrived in Australia on 12 February 2015 as the holder of a UD601 Electronic Travel Authority (ETA), which ceased on 12 May 2015.  On 26 April 2015, while still onshore, the applicant lodged an application for a visitor visa to extend her stay in Australia because “mother on student visa”.

9. Departmental records indicate that in the 18 months prior to the delegate’s decision, the applicant had been in Australia for 422 days and outside Australia for only 133 days.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of remaining with her mother while she is studying in Australia.  This could be a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

12. 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)).  The applicant has previously been granted visas to travel to Australia and has complied with the conditions of those visas. 

13. 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.600.611(3)):

    ·8101 – must not work in Australia

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

    Given the visa applicant’s age, the Tribunal is satisfied that she will not work or engage in any study while she is in Australia.

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

15. The Tribunal was told that the applicant is in the full time care of her mother, who separated from the applicant’s father about 4 years ago and who is currently on a student visa (due to cease in 2017), studying English in Perth.  The Tribunal was told that the majority of the applicant’s family lives in Malaysia.  She does however, have an aunty and 2 cousins living in Perth, Australia. 

16. Departmental records show that the applicant first came to Australia, with her mother, on 7 November 2013, as the holder of a UD601 ETA granted on 4 November 2013, and ceasing on 17 July 2014.  The applicant, along with her mother, left Australia and returned to Malaysia on 24 January 2014.  They re-entered Australia on 17 April 2014.  Prior to the UD601 ETA ceasing, a bridging visa was granted for the period 13 July 2014 to 15 August 2014.  A visitor (Class FA) visa was then granted on 15 August 2014, which ceased on 14 January 2015.  The applicant left Australia and returned to Malaysia with her mother, on 11 January 2015.  The applicant returned to Australia on 12 February 2015, as the holder of another UD601 ETA.  The extended stay sought under another visitor visa is the subject of this review.

17. The Tribunal was told that the applicant and her mother stay with the applicant’s Aunty and her children while they are in Australia. 

18. The mother of the visa applicant indicated to the Tribunal that she would like her daughter to stay in Australia to get used to the climate and eventually go to school.  She indicated to the Tribunal that it was her intention to apply on behalf of the applicant for a substantive visa to enable her daughter to commence Kindergarten in Australia, as soon as she was old enough to do so.     

19. The Tribunal was told that the applicant currently attends day care in Perth while her mother studies and works part time.

20. The applicant’s grandparents, who live in Malaysia, provide additional financial support – by sending AUD$5,000 each month - to the applicant and her mother. 

21. The Tribunal adjourned the hearing on 15 September 2015, to give the applicant and her mother time to seek further migration advice as to whether there might be a more appropriate visa for the applicant to apply for to allow her to remain with her mother, while she studies, in Australia.

22. The applicant’s representative, Mr Rumley, provided submissions to the Tribunal prior to the resumed hearing.  Those submissions set out that the more appropriate visa for the applicant is a Subclass 570 – Independent ELICOS Sector, as a dependent and/or secondary applicant.  The submissions also suggest the grant of the requested visa so as to enable the applicant to submit a more appropriate visa application.

23. Mr Rumley submitted that the sole purpose of the applicant remaining in Australia is for her to visit her family and friends, namely her Aunty and cousins, with whom she resides. It was also submitted that it appears that the applicant has abided by all visa conditions and regulations attached to previous visas, and meets the criterion for the grant of this visitor visa. 

24. Mr Rumley submitted that a refusal of the visa, on the basis of the Department’s defacto residence policy, would effectively divide a natural mother and a child or result in a full fee paying international student having to cancel and forfeit her professional development and fees and that this would be deemed an exceptional and compelling enough reason to grant the visa.

25. At a resumed hearing on 15 October 2015, the applicant’s mother indicated to the Tribunal that she intended making application for a different visa for her daughter.  She indicated that while it would be inconvenient, she was aware that if this visa was not granted, she would have to make application for an alternative visa offshore, and that she and her daughter would return to Malaysia to do this. 

26. While the Tribunal accepts that the applicant has complied with the consequential, temporary visitor visas that she has been granted over recent years, it is not satisfied that   there is an overriding intention to stay in Australia temporarily.  Rather, given her visa history as well as the evidence of her mother that she would like the applicant, during the currency of this visa, to stay here to acclimatise and attend day care with a view to ultimately entering the education system, the Tribunal holds the view that the applicant is seeking to establish ongoing residency in Australia by holding a series of visitor visas and does not meet the genuine visitor requirements.  Further, the Tribunal is satisfied that this is a relevant matter under cl.600.211(c) in considering whether the applicant intends to stay temporarily in Australia for the purpose for which the visitor visa is granted.

27. Taking into account all of the evidence before it, 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.

    DECISION

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

    Nicola Findson
    Member