1511563 (Migration)

[2016] AATA 3146

1511563 (Migration) [2016] AATA 3146 (28 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Tamara Panfilova

VISA APPLICANT:  Mr Besiki Rostiashvili

CASE NUMBER:  1511563

DIBP REFERENCE(S):  BCC2015/1689626

MEMBER:Brook Hely

DATE:28 January 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 28 January 2016 at 5:04pm

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 17 June 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 12 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 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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 28 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence in person from the review applicant’s adult daughter, Diana Camilleri, as well as oral evidence from the visa applicant via telephone in Georgia. The Tribunal hearing was conducted with the assistance of interpreters in the Russian, Georgian and English languages.

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

   OVERVIEW OF THE VISA APPLICATION

7. The visa applicant is a 50 year old citizen of Georgia, where he currently lives. It was claimed in the application that the visa applicant wished to visit Australia for approximately 6 months in order to visit his family, attend the birthdays of his daughter-in-law, grandson-in-law and wife, as well as to attend his daughter-in-law’s graduation. It was further claimed in the application that the visa applicant has been employed for four months as a ‘flag man’ and a confirmation of employment letter was provided from the visa applicant’s employer. The visa applicant also provided evidence of ownership of several properties, as well as a letter from a bank in Georgia confirming a balance of US$2850.

8. Also included as part of the application were the following relevant documents:

   a.Identity documents of the visa applicant

   b.Marriage certificate in relation to the marriage of the visa applicant and review applicant on 6 January 2015

   c.Extract from the Registry of Entrepreneurial and Entrepreneurial (Non-Commercial) Legal Entities, registering the visa applicant as an Individual Entrepreneur on 16 October 2014

   d.Travel insurance policy in relation to the visa applicant’s proposed period of travel to Australia

   e.Letter of support from the review applicant, together with supporting evidence (passport, evidence of permanent residency status, bank statement, evidence of accommodation and drivers licence)

9. At the Tribunal hearing, the review applicant also provided additional documents in relation to the visa applicant, including a residency certificate, updated bank statement, criminal record certificate, income tax declarations from 2014 and 2015 and updated Extract from the Registry of Entrepreneurial and Entrepreneurial (Non-Commercial) Legal Entities confirming his relevant type of entrepreneurial activity being in viticulture and production of alcoholic drinks.

   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 visiting his wife (the review applicant). This is 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)). There is no evidence before the Tribunal to show that the visa applicant has ever previously held a substantive or bridging visa.

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(2), (3) and (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.

14. The visa applicant’s compliance with these conditions is discussed below.

15. The Tribunal has also considered all other relevant matters (cl.600.211(c)), which is also discussed below.

16. The Tribunal acknowledges the concern of the delegate that the visa applicant had not provided an adequate savings history and had not travelled outside of Georgia. The Tribunal also appreciates the significant disparity in economic conditions between Australia and Georgia, which might act as an inducement for the visa applicant to remain in Australia or to work unlawfully. The Tribunal is also mindful of the delegate’s concern that the visa applicant’s evidence of employment submitted with the application did not indicate that his employment would provide much inducement to return to Georgia at that time.

17. Whilst not raised explicitly by the delegate, the Tribunal also notes its concern with respect to the brief period that the review applicant and visa applicant have spent together in person. As confirmed at the hearing, aside from approximately 3 weeks spent together in Georgia in December 2014/January 2015 during which they were married, the couple have not spent any time together in person. There is also very limited evidence before the Tribunal with respect to the genuineness of this claimed spousal relationship. The Tribunal has also considered the relatively high non-return rate for Georgian citizens travelling to Australia on visitor visas according to the Department’s modified non-return rate as at 30 June 2013 (when records were last updated).

18. However, the Tribunal had the opportunity at the hearing to question the review applicant at length in relation to the circumstances surrounding her relationship with the visa applicant. Whilst beyond the scope of the present review to assess the genuineness of her claimed marriage to the visa applicant, the Tribunal observes that she provided clear and spontaneous evidence when questioned on a variety of aspects of their relationship and personal lives. The Tribunal also received oral evidence in person from the review applicant’s adult daughter, who also confirmed her belief that the relevant relationship was genuine. Both the review applicant and her daughter also confirmed that they supported the present visa application to enable the visa applicant to spend some time in Australia, get to know their family here, celebrate several important family birthdays and assess their plans together as a couple. The review applicant also confirmed that it was her ultimate intention to sponsor the visa applicant for a spouse visa, but they had submitted the present visitor visa application as a first step towards this goal. She noted that they primarily submitted the visitor visa application because they wished for the visa applicant to be present during several significant birthdays last year (including the review applicant’s 65^th birthday, her daughter’s 30^th birthday and her mother’s 80^th birthday). She also wished to give the visa applicant an opportunity to spend some time in Australia before deciding to relocate here permanently. The Tribunal found the review applicant and her adult daughter to be credible witnesses and it accepts their evidence on these matters. The Tribunal notes that it also had the opportunity to receive oral evidence from the visa applicant by telephone. Whilst more difficult to assess his credibility via telephone, the Tribunal notes that his evidence was generally consistent with the evidence given by the review applicant and her daughter.

19. The Tribunal accepts that the review applicant ultimately wishes to sponsor the visa applicant for a permanent spouse visa. The Tribunal accepts that this will provide a significant incentive for the visa applicant to comply with his visa conditions, to avoid prejudicing the outcome of any such future application.

20. The Tribunal also accepts that, in addition to his employment with CanArgo Georgia Ltd detailed in his application, the visa applicant owns agricultural land on which he grows grapes for the purposes of wine production. The Tribunal accepts that the combination of this employment provides sufficient income for him to support himself and his family in Georgia. The Tribunal also accepts that the visa applicant currently resides with his parents and 18-year-old son and that he has two other adult children who also live close by. Notwithstanding the general intention of the visa applicant to relocate to Australia in the near future on a permanent spouse visa, the Tribunal accepts that his current employment and family ties would provide an incentive for him to return to Georgia following his proposed visit, at least until steps are taken by the review applicant and visa applicant to pursue his permanent relocation following this visit.

21. 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

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.600.211 of Schedule 2 to the Regulations.

    Brook Hely
    Member