1510265 (Migration)

[2016] AATA 3141

1510265 (Migration) [2016] AATA 3141 (2 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Shakrukh Rasulov

VISA APPLICANT:  Mrs Dilbar Khatamova

CASE NUMBER:  1510265

DIBP REFERENCE(S):  BCC2015/2089404

MEMBER:Chris Thwaites

DATE:2 February 2016

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 02 February 2016 at 8:23am

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 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 July 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. On 21 July 2015 the delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate concluded that the visa applicant did not genuinely intend to stay temporarily in Australia for the purposes for which the visa was granted.

5. On 30 July 2015 the review applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has before it the Department’s file relating to the visa application and the Tribunal’s file relating to the review application. The Tribunal has also had regards to the delegate’s decision record provided to the Tribunal by the review applicant.

7. The review applicant appeared before the Tribunal on 27 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence in person from the review applicant’s sister Mrs Khilola Murphy, who is the daughter of the visa applicant, and oral evidence from the visa applicant by telephone from Uzbekistan. 

8. The Tribunal has had the advantage of more evidence than was before the delegate, including oral evidence from the review applicant and Mrs Murphy and the visa applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   FINDINGS AND REASONS

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her children, the review applicant and Mrs Murphy, who are both Australian citizens, and to travel around the country. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221.

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)). The Tribunal accepts the consistent oral evidence of the review applicant and Mrs Murphy and the visa applicant, which was consistent with departmental records, that the visa applicant has not travelled to Australia or previously held any Australian visas for the purposes of cl.600.211(a).

11. 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.

12. The review applicant and Mrs Murphy and the visa applicant all told the Tribunal that the visa applicant had no intention of working or undertaking any education or training in Australia. There is no information before the Tribunal suggesting that the visa applicant would engage in any work or study or training in Australia.  Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa conditions 8101 and 8201. In the circumstance of this matter, the Tribunal has carefully considered whether the visa applicant intends to comply with conditions 8531. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

13. The review applicant and Mrs Murphy and the visa applicant all gave consistent oral evidence in relation to the visa applicant’s family composition and personal circumstances. This evidence was consistent with the information provided to the Department. On the basis of the evidence before it the Tribunal finds that the visa applicant is divorced and retired from paid employment and lives in a property she inherited and receives rent from a property she owns in Uzbekistan. The visa applicant has a brother and sister she sees regularly. She also provides regular care for an aged aunt who lives close by. The visa applicant sees her nephews and nieces regularly and attends Church and volunteers in her local community on a regular basis. The visa applicant’s two children both travelled to Australia on Student visas and have become Australia citizens through the skilled migration process. The visa applicant has applied for a Parent visa and has been told by the Department that the processing period is approximately 15 to 30 years. She then applied for a Visitor’s visa so she can visit her children during the intervening years while she waits for her Parent visa application to be processed.    

14. The Tribunal has carefully considered the claims that the visa applicant would visit Australia temporarily and then leave and return to Uzbekistan at the end of any visa period. The Tribunal considered the presence of the review applicant and his sister may provide some incentives for the visa applicant not to return to Uzbekistan. Nevertheless, the Tribunal also accepts that the visa applicant has lived in Uzbekistan all her life and is well established and has family members she sees regularly, some of whom depend on her help, and is deeply connected to her local community. The Tribunal accepts the visa applicant’s oral evidence that she has no reason not to return to Uzbekistan after visiting Australia. The Tribunal accepts the visa applicant’s Parent visa application is a long term plan to move to Australia and that she does not currently wish to move permanently to Australia. The Tribunal also accept the visa applicant wishes to visit her children in the intervening years while her Parent visa application is processed. The Tribunal notes that all the family is very aware any breach of visa conditions would adversely affect future visa applications. The Tribunal accepts that these factors would provide the visa applicant with strong incentives to leave Australia and return to Uzbekistan after any visit. The Tribunal is satisfied for the purposes PIC 4011 that, having regard to the circumstances in the applicant’s country of usual residence, there is very little likelihood that the applicant will remain after the expiry of any period during which she might be authorised to remain after entry.

15. The Tribunal found the review applicant and the visa applicant and Mrs Murphy to be honest and persuasive in their evidence that the visa applicant would return to her life in Uzbekistan after any visit to Australia. The Tribunal accepts that the visa applicant wishes only to visit Australia and will comply with any visa conditions.

    CONCLUSION

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

    DECISION

17. 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.

    Chris Thwaites
    Member  2 February 2016