1506935 (Migration)

[2015] AATA 3392

1506935 (Migration) [2015] AATA 3392 (1 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Narisianus Babur

CASE NUMBER:  1506935

DIBP REFERENCE(S):  BCC2015/1158544 CLF2015/30385

MEMBER:Alison Mercer

DATE:1 September 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.600.212 of Schedule 2 to the Regulations; and

·cl.600.213 of Schedule 2 to the Regulations.

Statement made on 01 September 2015 at 2:17pm

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 1 May 2015 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is an Indonesian national, applied for the visa on 20 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.600.212, which requires the visa applicant to satisfy the Minister that he or she has adequate means to support him or herself, or access to adequate means of support, during the period of intended stay in Australia. They also include cl.600.213, which requires that the visa applicant satisfies (amongst other things) the health criteria set out in Public Interest Criterion 4005 (PIC 4005).

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.212 and cl.600.213 because he did not respond to the Department’s requests to provide evidence that he had adequate funds, or access to adequate funds, to support himself for the 3 month duration of his proposed stay, and did not provide evidence that he had undertaken the required health checks to satisfy PIC 4005.

5. The Tribunal received a review application from the applicant on 21 May 2015.  It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed Ms Jennifer Bull to be his representative and authorised recipient for correspondence for the purposes of the review.  Ms Bull provided a written statement in which she indicated that she and her father and immediate family supported the applicant financially while he was in Australia staying with them, as they treated him as part of their family. She noted that the applicant had been required to have an X ray in order to extend his visitor visa for a further 3 months, but had not been able to get an X ray appointment in Bendigo within the time frame to respond to the Department’s request.  This had now been undertaken.  Ms Bull provided the applicant’s reference number for his X ray and medical examination.

6. The applicant appeared before the Tribunal on 25 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jennifer Bull.  Ms Bull provided a number of documents to the Tribunal including letters of support for the applicant’s stay from her brother Dale Bull, sister Robyn Bull, and father Alan Bull and a bank statement for the period 17 May 2015 to 25 August 2015 for Ms Bull’s business.

7. Following the hearing, the Tribunal received further documents from Ms Bull, being a travel health insurance policy for the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether cl.600.212 and cl.600.213 are met, which requires the Tribunal to be satisfied that the applicant has adequate means to support himself, or access to adequate means to support himself, during the 3 month period of intended stay in Australia, and that he satisfies the health criteria set out in PIC 4005.

   Adequate funds, or access to adequate funds

10. Departmental guidelines suggest that it would be appropriate to take into account the planned activities and accommodation/living arrangements in Australia when assessing this criterion, noting that funds can also be provided by relatives or friends in Australia.[1] Relevant evidence of means of support may include bank statements/passbooks, letters from banks or other financial institutions concerning the financial position of the applicant, air tickets, and available credit card funds (with savings history considered to be better evidence than recently deposited funds).[2]  While the Tribunal may have regard to Departmental guidelines, they are not binding and the Tribunal has considered the individual circumstances of the applicant and has not raised any guidelines to the level of a legislative requirement.

    [1] PAM3: GenGuideH – Visitor visas – Visa application and related procedures – Section 8 ‘Adequate means of support’ (compilation 14 February 2014).

    [2] PAM3: GenGuideH – Visitor visas – Visa application and related procedures – Section 8 ‘Adequate means of support’ at [8.3] (compilation 14 February 2014).

11. The Tribunal considered whether the visa applicant has adequate means, or access to adequate means, to support himself in Australia for a further stay.

12. In the present case, the applicant lodged an application for a Class FA Subclass 600 (Visitor) Tourist stream visa on 20 April 2015 seeking to extend his stay in Australia for a further 3 months.  The applicant and Ms Bull told the Tribunal at the hearing that the applicant met Ms Bull and her family in Bali, where he is from, about 7 years ago.  They became good friends, and Ms Bull and her family sent back money to assist the applicant in Bali.  They then invited him to visit Australia and stay with them.  While in Australia, the applicant has lived with Ms Bull and her husband and son.  Ms Bull runs a bridal shop and magazine business and has supported the applicant to date.  Her siblings and father, who are also close to the applicant, have helped out as well.  When the applicant lodged the visa application that is the subject of the current review, they hoped that he could stay another 3 months with the aim of going to Queensland and seeing some more of Australia. However, these plans were put on hold when the applicant’s visitor visa application was refused.  If the review is successful, the applicant and the Bull family would love him to be able to stay until December 2015 so that he could be here for Mr Alan Bull’s 80^th birthday in December and for Christmas. Ms Bull gave evidence that she and her family could and would continue to accommodate and financially support the applicant for that period, if the Department granted the applicant a stay of that long.  Ms Bull said that her brother has a good business of his own, and provided evidence that he is the principal of D M Bull Cartage Contracting, Lake Boga.

13. Ms Bull said that she and her family will travel to Bali for approximately 3 weeks in mid-September 2015 to attend her brother in law’s 40^th birthday there, during which time the applicant will stay with her brother and/or sister in Bendigo and be supported by them.  She also indicated that they had purchased travel health insurance for the applicant for the period of his stay.  Ms Bull emphasised that their aim was always to do everything properly in relation to immigration requirements, and they were not aware that they should have provided bank account evidence earlier, as they were focussed on trying to get the applicant booked to do an X ray in time to meet the Department deadlines.  They are keen for the applicant’s visit to meet all the requirements as it is totally genuine.

14. The Tribunal found Ms Bull and the applicant both to be credible and consistent in their evidence at hearing.

15. As noted above, further supporting material was provided after the hearing, being a copy of a health insurance policy taken out for the applicant with BUPA on 25 August 2015.

16. From the information provided, particularly Ms Bull’s business bank account to 25 August 2015, the current health insurance for the applicant and the written statements of members of the Bull family (confirmed in Ms Bull’s oral evidence at hearing) that the applicant has been staying, and will continue to stay with family members at no charge, the Tribunal is satisfied that the applicant has access to adequate means of support for the duration of his proposed further stay (assuming it to be until December 2015) and that he therefore satisfies clause 600.212.  The Tribunal notes that Ms Bull indicated that her brother Dale would provide a copy of his bank account statement on 31 August 2015.  To date, the Tribunal has not received this.  However, the Tribunal considers that the evidence before it is sufficient for it to be satisfied that cl.600.212 is met, without this additional evidence.

    Health criterion – PIC 4005.

17. The evidence before the Tribunal indicates that the applicant most recently arrived in Australia on 27 January 2015 as the holder of a subclass 600 visa which was valid until 30 April 2015.  As noted above, he applied for the visitor visa that is the subject of this review on 20 April 2015.  Therefore, the Tribunal is satisfied that at the time the applicant made the most recent application, he was seeking to remain in Australia for a period of more than 3 months in total.

18. The applicant is required to satisfy cl.600.213, which includes PIC 4005.  PIC 4005(1) specifies that the applicant must undertake any medical assessment specified in the relevant written instrument by the Minister.  The current instrument, IMMI 14/042, requires that an Indonesian national over the age of 11 who is seeking a stay of 3 months in Australia or more must undertake a chest X ray, and also a medical examination in specified situations, none of which apply to the applicant.

19. Although he had not provided evidence of meeting this requirement at the time of the delegate’s decision, the applicant has now provided evidence that he undertook an X ray after receiving the decision.  The Department’s records confirm that the applicant undertook an X ray on 7 May 2015, in relation to which there were no significant findings.

20. The Tribunal is therefore satisfied that the applicant meets PIC 4005(1) for the purposes of cl.600.213.

21. Based on the above, the appropriate course is to remit the application to the Department for reconsideration.

    DECISION

22. 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.600.212 of Schedule 2 to the Regulations; and

    ·cl.600.213 of Schedule 2 to the Regulations.

    Alison Mercer
    Member