1513732 (Migration)

[2016] AATA 3758

1513732 (Migration) [2016] AATA 3758 (22 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Timothy Keane

CASE NUMBER:  1513732

DIBP REFERENCE(S):  BCC2015/2692338

MEMBER:Rachel Homan

DATE:22 April 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 22 April 2016 at 11:54am

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 18 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 applicant applied for the visa on 15 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. The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.211.

4. The applicant appeared before the Tribunal on 8 April 2016, by video link from Darwin to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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. The conditions to which a Subclass 600 visa in the circumstances of this case are ordinarily subject include:

   ·8101 – must not work in Australia

   ·8201 – must not engage in study or training in Australia for more than 3 months

   And may include

   ·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

   ·8558 - must not stay in Australia for more than 12 months in any period of 18 months.

8. In limited circumstances, where an applicant is suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia; and the applicant, or a member of the applicant’s immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia; and for reasons beyond the applicant’s control, the applicant, or a member of the applicant’s immediate family, cannot leave Australia; and the applicant has compelling personal reasons to work in Australia; only condition 8201 must be imposed and condition 8503 may be imposed.

   Visa application

9. The applicant is a 44-year-old British citizen. In his visa application form, the applicant provided a residential address in Rapid Creek, Northern Territory. The applicant declared that, in accordance with his current visa conditions, he was employed on a full time basis. The applicant stated that he arrived in Australia in October 2006 and supports his child in Australia. The applicant said he had been involved in immigration processes for five of the nine years that he had lived in Australia and was currently collecting information and assessments to apply for a Subclass 190 visa. The applicant indicated that he was seeking a visa which would permit him to remain in Australia for a period of up to 6 months between September 2015 and March 2016.

10. The visa application was refused because the delegate was not satisfied that the applicant genuinely intended to stay in Australia for the purpose for which the visa is granted. The delegate noted that the visitor visa program was designed to allow genuine tourists an opportunity to travel to Australia temporarily for the purposes of genuine tourist activities and did not support applicants remaining onshore to collect documents or await the results of examinations or assessment of qualifications.

    Immigration history

11. The Department’s movement records show that the applicant first arrived in Australia in 1995 as the holder of a working holiday visa. The applicant departed within the validity of his visa and travelled again to Australia in 2001 as the holder of an electronic travel authority.

12. The applicant travelled in and out of Australia on three occasions between October 2006 and May 2007. In December 2007, the applicant was granted a Subclass 820 partner visa. In November 2009, the applicant advised the Department of Immigration that his relationship had ended and he was refused a permanent Subclass 801 partner visa. The applicant sought review of that decision by the Migration Review Tribunal (MRT), which affirmed the primary decision on 30 July 2013.

13. In its decision record, the MRT noted that during the course of the proceedings before it, the applicant had been in a relationship with another Australian citizen with whom he had a child. The MRT referred the applicant’s case to the Department to be brought to the Minister’s attention for consideration in relation to the Minister’s discretionary power under s.351 of the Act to substitute for the MRT’s decision a more favourable decision.

14. The material before the Tribunal indicates that the Minister intervened in the applicant’s case in March 2015, granting him a substituted Subclass 600 visitor visa. That visa expired on 18 September 2015. The letter to the applicant advising him of the Minister’s decision stated that the effect of the substituted Subclass 600 visa was to enable him to apply for another visa but he would be required to satisfy all relevant criteria for the grant of that visa.

    Review application

15. The applicant provided to the Tribunal written and oral evidence indicating that he wished to extend the visa granted to him pursuant to the Minister’s intervention under s.351 of the Act in order to provide him with time to obtain the requisite documentation, and make an application, for a Subclass 190 visa. This would, if the Subclass 190 visa were granted, allow him to remain in Australia in order to pursue a relationship with his young son.

16. At the Tribunal hearing, the applicant told the Tribunal that he was not a tourist. He explained that he had been living and working in Australia for a number of years and the visa that had been granted to him by the Minister included work rights. The applicant said he had been advised by the Department that he could lodge the present application in order to extend that visa. The Tribunal explained to the applicant that he had made a fresh application for a visitor visa and the Tribunal’s task was to determine whether he met the criteria for that visa. The Tribunal also explained that ordinarily Subclass 600 visas are not granted with work rights.

17. The applicant told the Tribunal that he had not yet lodged an application for a Subclass 190 visa but had prepared the relevant documents and was ready to submit them. The applicant stated that it was his understanding that he was unable to submit the application whilst he was the holder of a bridging visa. The applicant said he had been told informally by the Northern Territory government over the phone that he could apply for their sponsorship and believed he would otherwise meet the criteria for the visa. The applicant told the Tribunal, however, that he had not sought the advice of a registered migration agent or lawyer.

18. The Tribunal noted that the visa given to the applicant by the Minister was intended to provide him with a window in which to prepare an application for a further visa. The Tribunal asked the applicant why he had been unable to do this in the 6 month period given to him. The applicant responded that it had been suggested to him that he could apply for a parent visa but he did not believe he could meet the criteria for that type of visa. In particular, the applicant had no-one willing to sponsor him and his son was too young to fill this role. The applicant said he had lengthy discussions with his former partner and a maternal uncle with a view to having them act as a proxy for his son but they declined or were not eligible to act as sponsor. The applicant then decided to apply for a skilled visa and applied to Vetassess for an assessment of his skills and qualifications. The applicant also had to sit an IELTS English language test and obtain documents, including employment references. For a variety of reasons, he ran out of time to make the application.

19. The Tribunal asked the applicant about his current relationship with his son. The applicant stated that he had not had any contact with his son since March 2015. The applicant stated that his son moved to Sydney with his mother in 2012, after having been born in Darwin. The applicant went to Sydney at the time and attempted to resume a relationship with his son’s mother over a period of approximately 10 months but they were unable to reconcile their differences. Ultimately, the applicant returned to the Northern Territory but continued to visit his son regularly. The applicant’s son also came to Darwin on three occasions, the last of which was in January 2015. The applicant’s former partner now refuses to permit the applicant to communicate with his son, although the applicant’s parents had been able to talk with him over Skype. The applicant stated that he was working full-time with the Northern Territory Primary Health Network and was paying $168 per week in child support. The applicant claimed that there was a shared parenting order in place but it had never been adhered to. The applicant said he had stopped trying to get information about his son and was just trying to manage his life. The applicant said he hoped that his son would want to resume a relationship with him when he was not under the control of anyone else.

20. The Tribunal noted that the applicant had sought a further visa for a period of 6 months and this time had now in fact passed. The Tribunal asked the applicant about his plans if he were to be granted the visa now. The applicant said he would apply for a Subclass 190 visa but was unsure of what timeframe he required, noting that he would first have to apply for the Northern Territory government’s sponsorship. The applicant said it was his understanding was that he was unable to apply for sponsorship whilst he was holding a bridging visa.

21. The Tribunal put to the applicant that the visa criterion in issue required the Tribunal to consider, amongst other things, whether he would comply with the conditions which would be attached to the visa if granted. Although the applicant had previously been granted a visitor visa with work rights, the legislation required a no work condition to be imposed, unless the applicant was suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia; and the applicant, or a member of his immediate family was likely to become a charge on the State; and for reasons beyond the applicant’s control, the applicant, or a member of his immediate family, cannot leave Australia; and the applicant has compelling personal reasons to work in Australia. The Tribunal noted that the applicant had been working and expressed a wish to continue to work and that this could breach his visa conditions if the visa were granted. The applicant said he needed to work in order to continue to survive and pay rent. The applicant said he did not know whether his son’s mother was working presently but the last he knew, she was not.

22. The Tribunal asked the applicant what he would do if, for whatever reason, he was unable to make a subclass 190 application within the validity of a further visitor visa. The applicant told the Tribunal that he was hoping to be able to have a relationship with his son and would look at all options available to him in terms of being able to remain in Australia. If he had no choice and was required to leave or face deportation, he would abide by the law and leave. The Tribunal put to the applicant that to meet the criteria for the visa the Tribunal had to be satisfied that the applicant intended to stay in Australia temporarily for the purposes of the visa, however, the applicant’s intention appeared to be to exhaust all options to remain in Australia permanently in order to pursue a relationship with his son. The applicant responded that his intention was to be a father.

    Findings

23. The applicant in this case is seeking the visa for the purpose of remaining in Australia to complete the necessary paperwork and meet the requirements for making an application for a further visa.  This is a permissible purpose for a visa in the Tourist stream having regard to cl.600.221 and cl.600.222. The Tribunal’s task is to consider whether the applicant genuinely intends to stay temporarily in Australia for that purpose.

24. There is nothing in the material before the Tribunal that indicates that the applicant has failed to comply substantially with the conditions attached to his previous Australian visas: cl.600.211(a).

25. In considering whether the applicant whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject pursuant to cl.600.211(b), as put to the applicant at hearing, a visa in this stream is ordinarily subject to condition 8101 which would prevent the applicant from working. Condition 8101 is not a mandatory condition if an applicant is suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia; and the applicant, or a member of the applicant’s immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia; and for reasons beyond the applicant’s control, the applicant, or a member of the applicant’s immediate family, cannot leave Australia; and the applicant has compelling personal reasons to work in Australia.

26. The evidence before the Tribunal is that the applicant is currently working on a full-time basis for a Northern Territory government agency, is paying rent for his accommodation and also pays child support. The Tribunal is not satisfied on the evidence that the applicant is, at the time of this decision, suffering financial hardship. Accordingly, the Tribunal is not satisfied that cl.600.611(4) applies. In these circumstances, the Tribunal finds that the visa would be subject to condition 8101, if granted. The applicant has told the Tribunal that whilst pursuing a permanent visa he would need to continue to work in order to continue to pay rent, support himself financially and continue to pay child support. In these circumstances, the Tribunal is not satisfied that the applicant intends to comply with the requirements of condition 8101: cl.600.211(b).

27. The Tribunal is generally not satisfied that the applicant intends to stay in Australia temporarily. The Tribunal notes the applicant’s evidence that he would voluntarily depart Australia if required to do so or else be forcibly removed. However, the Tribunal has also had regard to the applicant’s evidence that he intends to pursue all possible options to enable him to remain lawfully in Australia on a permanent basis.

28. In all the circumstances, the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted, and finds that the requirements of cl.600.211 are not met.

29. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant’s evidence in relation to his present circumstances, including the current state of his relationship with his son. Having regard to the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal has decided not to refer the matter to the Minister. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

30. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Rachel Homan
    Member