1513211 (Migration)

[2016] AATA 3414

1513211 (Migration) [2016] AATA 3414 (1 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Mallika Sriyalatha Dammage Dona

VISA APPLICANT:  Mrs Nalanie Premalatha Dammage Dona

CASE NUMBER:  1513211

DIBP REFERENCE(S):  086859X

MEMBER:Adrian Ho

DATE:01 March 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 01 March 2016 at 4:23pm

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 24 September 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 16 September 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. In the present case, the visa applicant seeks the visa for the purposes of visiting her sister and son. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

8. 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)).

9. The delegate noted, and the visa applicant’s movement records confirm, that she has visited Australia previously on a 676 visa; for just under a month to November 2010.  On the evidence, and as suggested by the delegate, she made a visit in compliance with visitor visa conditions.

10. 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.

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

    Findings

12. The delegate was of the view that the visa applicant had provided very little evidence in support of the application.

13. The delegate took the view that her circumstances had changed since her compliant visit of 2010.  It is not clear on the face of the decision record which of her circumstances had changed if any.

14. The delegate observed that the she was not employed.  The tribunal accepts that she has no work to serve as incentive for her to leave Australia, but this is but one relevant consideration.

15. The tribunal accepts that the applicant’s sister is an Australian citizen and the applicant’s son is studying in Australia.

16. The tribunal considers that there are few more direct and convincing ways to demonstrate an intention to comply with the visitor visa scheme than to have made a compliant visit to Australia.  The visa applicant has done so.  The tribunal considers that historically compliant visits carry greater weight, than the statistical non-return rate or the general political or security situation in the country of origin.  A compliant visit demonstrates that despite an adverse statistical average for the country, or adverse circumstances in the country, a visitor, given the opportunity to conduct themselves in a manner inconsistent with visa conditions, has nevertheless complied. 

17. The tribunal observes that when the compliant visit of 2010 was made, that was a time that was still proximate to the civil war in Sri Lanka, which ended the year before in 2009.  Now, in 2016, general information suggests that the country has further stabilised.  In any event, the tribunal accepts that the applicant is from Western Province, which is well to the south west of the island and well away from areas of former conflict in the north.

18. The tribunal observes that the applicant indicates she is a widow and on the evidence she has no partner in Sri Lanka.  The tribunal considers her son’s presence in Australia, on a temporary visa, and lack of a partner in Sri Lanka provide her with some incentive not to leave Australia.

19. However, the review applicant has offered to place a security for the visa and the tribunal considers that this supports the family’s combined intention for the visa applicant to make a complaint visit.  Ultimately, the tribunal places more weight on the visa applicant’s past compliant visit to Australia in finding that the visa applicant intends to comply with visitor visa conditions and 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.

20. In making this decision the tribunal observes that if there are residual concerns, the applicant may be required to be sponsored and a security may be required for the grant of the visa: cl.600.224 and cl.600.225.

    DECISION

21. 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.

    Adrian Ho
    Member