1510638 (Migration)

[2015] AATA 3558

1510638 (Migration) [2015] AATA 3558 (13 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr OMATILLO NODIROV

VISA APPLICANT:  Mr AKHMADULLA NADIROV

CASE NUMBER:  1510638

DIBP REFERENCE(S):  BCC2015/1756462

MEMBER:Lesley Hunt

DATE:13 October 2015

PLACE OF DECISION:  Brisbane

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 13 October 2015 at 2:38pm

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 13 July 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 11 June 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 because the delegate was not satisfied on the evidence provided that the applicant intended a genuine temporary stay in Australia.  

5. The review applicant appeared before the Tribunal on 13 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Uzbek and English languages.

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 his son and his son’s family. 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. The visa applicant has never previously visited Australia.  He has therefore not previously held a visa in Australia.  The Tribunal finds therefore that cl.600.211(a) does not apply.

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 had regard to the Immigration Department file number BCC2015/1756462, the additional evidence submitted by the applicant to the Tribunal including the review applicant’s oral evidence at the hearing.

14. The Tribunal found the review applicant to be very forthright and unequivocal in his answers to the Tribunal’s questions.  He was very forthcoming with information about his close and extended family and their lives in Uzbekistan.  The Tribunal found no reason to doubt the information provided by the review applicant and found him to be a very credible witness. 

15. The information before the Tribunal indicates that the visa applicant is aged 65, retired and in receipt of a full pension.  The review applicant stated that his father used to work as an engineer with a fabric manufacturing company.  He lives in his own home with his wife, two of his sons and their respective families.  The review applicant stated that his father lives a comfortable life in Uzbekistan and has no need or intention to work in Australia.

16. The review applicant stated that he is a courier driver and works on a full-time basis in Brisbane.  He stated that his gross income averages $2,000 a fortnight.  He stated that his wife does not have paid employment and looks after the family home and their three children. 

17. After assessing the evidence the Tribunal accepts that the visa applicant has no need or intention to work in Australia and finds that the visa applicant intends to comply with condition 8101.

18. The review applicant stated that his father has no desire to undertake any study or training in Australia.  The Tribunal finds no reason to doubt this evidence.  The Tribunal finds accordingly that the visa applicant intends to comply with condition 8201.

19. The Tribunal discussed condition 8503 with the review applicant. The review applicant stated his father has a very full and colourful life in Uzbekistan and has no desire to remain in Australia for longer than a 3 month period.  He stated that his father has never been politically active.  His religion is Muslim and this is the same for 98% of the population of Uzbekistan and religion has never caused his father or any member of his family any problems.  The review applicant stated that his father has never expressed a desire to live anywhere other than Uzbekistan and has no reason to fear being harmed in Uzbekistan.  The review applicant stated that his father has no grounds for applying for protection in Australia and had no intention to apply for protection in Australia.

20. The review applicant stated that his father and step-mother live with two of his father’s sons and their respective families and they have very close relationships. His father has four sons in total and the review applicant is the only family member living outside Uzbekistan.  His father also has a daughter who lives with her family in Uzbekistan. 

21. The review applicant stated that his father has a total of 13 grandchildren and of these it is only the review applicant’s 3 children who live outside Uzbekistan.  He told the Tribunal that his step-mother has 5 brothers and 4 sisters all of whom live with their families in Uzbekistan.  His step-mother’s father, who is aged 85, also lives in Uzbekistan. 

22. The review applicant stated that his father has four brothers and 1 sister and they all live close by in Uzbekistan.  He stated that his father has lived all his life in Uzbekistan and has a network of very close friends, many of whom he has known since childhood and stays in regular contact with.  He stated that his father generally sees his siblings on a daily basis.  The review applicant stated that his father is able to travel freely around Uzbekistan and travels regularly to the mountains with his friends or his brothers.  He stated that his father’s life is very full and colourful and he doubts he would wish to stay longer than one month in Australia as he would miss everybody and miss his lifestyle in Uzbekistan. 

23. The review applicant stated that the only reason his father wants to visit Australia is to see him - his son who he has not seen for ten years - and spend time with his family, particularly his three grandchildren, in Australia.  He stated that they are in regular communication via Skype and his children are all very excited about the possibility of their grandfather visiting them and going fishing with him and enjoying other adventures with him.  He wants his father to see his life in Australia and to know that he is happy with his life in Australia.

24. As stated previously the Tribunal found the review applicant to be a credible witness.  The Tribunal is satisfied that the review applicant understands the conditions subject to which a visitor visa is granted, that he has conveyed this information to his father, and that he is certain that his father will comply with the conditions on the visitor visa. 

25. The Tribunal places significant weight on the fact that the visa applicant has an extensive close and extended family network and a close friendship network in Uzbekistan.  It appears on the evidence that the only relatives the visa applicant has outside Uzbekistan are his son, daughter-in-law and three grandchildren.  In Uzbekistan he has his wife, 3 sons, 1 daughter, and 10 grandchildren.  He also has 4 brothers, 1 sister and their respective families in Uzbekistan.  In addition the visa applicant’s wife’s father, 5 brothers and 4 sisters all live in Uzbekistan; and he has an extensive network of significant friends in Uzbekistan.  He is 65 years old and speaks no English.  The Tribunal finds that these relationships and circumstances combine to provide a very significant incentive for the visa applicant to return to Uzbekistan and to comply with the conditions on the visitor visa if granted. 

26. After assessing all the evidence, the Tribunal is satisfied that the visa applicant intends to comply with the conditions 8503 and 8531.

27. The Tribunal finds that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)).

28. The Tribunal notes that the review applicant is an Australian permanent resident and a citizen of the United States of America.   He is in full-time employment, lives in rented accommodation with his wife and children, and is saving to purchase a family home.  He has indicated that he is willing and able to provide a financial bond as a security if that is required, and can provide up to $15,000 for that purpose if necessary.  The Tribunal has considered all other relevant matters finds that cl.600.211(c) is met.

29. 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

30. 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.

    Lesley Hunt
    Member