1513945 (Migration)

[2016] AATA 3509

1513945 (Migration) [2016] AATA 3509 (9 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Minj Purevdagva

CASE NUMBER:  1513945

DIBP REFERENCE(S):  BCC2015/2930660

MEMBER:Amanda Goodier

DATE:9 March 2016

PLACE OF DECISION:  Perth

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 09 March 2016 at 5:08pm

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 12 October 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 8 October 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 the applicant would comply with the conditions of the visa.

5. The applicant appeared before the Tribunal on 9 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Trent Ovens, Human Resource Manager, Micromine and Ivan Zelina, Chief technology Officer, Micromine.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of remaining in Australia with her husband while he finishes his study. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. 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)).

10. The evidence before the Tribunal indicates that the applicant has substantially complied with the conditions of her last held visa.

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.600.611(2)):

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

13. The delegate’s decision refers to the applicant lodging an application for a FA600 (Visitor-Tourist Stream) via the internet on 8 October 2015.  In completing the on-line application form the applicant stated that her reasons for applying for the extended stay was that her husband’s study finished in August 2016 and her intern’s period is at least 4 months at Micromine.  She provided with her application a copy of her Medibank membership card, a copy of her marriage certificate, a copy of her identity card from Mongolia, a copy of her passport, a copy of an air ticket, a copy of her husband’s visa grant letter, a copy of her overseas bank account statement, a copy of an overseas deposit account statement, another copy of an overseas bank account statement and a copy of her notification of her visitor visa grant. The applicant arrived in Australia on 1 September 2015 as the holder of a FA-600 Visitor-Business stream visa that was in effect until 1 December 2015.  On 8 October 2015 she lodged this visa application giving the reasons as described earlier.  In completing the form she declared that she was employed as an intern with Micomine PTY and that she was being supported in her stay by Micromine Mongolia Co ltd. 

14. The delegate was not satisfied that the applicant would comply with the conditions of this visa in that mandatory visa condition 8101 requires that an applicant must not work in Australia.  As the applicant indicated she was working as an intern and wished to complete her internship, the delegate was not satisfied she would comply with the conditions of the visa and refused to grant it.

15. The Tribunal was provided with a copy of a letter dated 9 October 2015 from Micromine P/L to the department requesting an extension of the visa for one to six months as the applicant was currently undertaking training with the technology team, she was employed by Micomine Mongolia LLC, a subsidiary of Micromine P/L who had committed to a four month internship for the applicant. A letter from Mr Trent Ovens states that they would like to contest the refusal on the basis that the applicant was trying to apply for an extension of her business visa not the tourist visa.  Having reviewed the online application, he cannot see where she had the option to choose her subclass stream.  They would very much like her to continue her training/internship at Micomine P/L as they have significant projects in Mongolia in the pipeline.    Continuing her training would assist their ability to do business in Mongolia and the intention is for her to return to Mongolia once her training is complete.  He seeks the review of the decision and granting a six month extension of her business visa.  She is paid and supported by Micomine Mongolia and will return home at the completion of her training in Perth.

16. The applicant was granted a Bridging Visa A at the expiry of her visitor visa with the condition 8115 – business visitor activity – the applicant must not work in Australia other than by engaging in a business visitor activity.

17. At hearing Mr Ovens indicated that it was not until after they lodged their application for review they realised that they were unable to apply for the business stream on-shore. He was aware that this application was for a visitor visa only.  He told the Tribunal that it was a condition of the applicant’s contract that she must have work rights in order to be employed by them In Australia.  He indicated that he was aware, as was the applicant, that if she did not hold work rights she was unable to continue to work with Micromine P/L.

18. The applicant told the Tribunal that she had no fears about returning to Mongolia.  It was where her home, work, family and life were.  As soon as her husband’s course finishes (he is in Australia on a student visa studying English) they will be returning to Mongolia.  The tickets are already booked.  Her two young children are in Australia on visitor visas and they will all be returning together after their holiday is over.  The applicant indicated that it was her intention to only stay while her husband studies and then return to Mongolia. 

19. The tribunal is satisfied on the evidence provided that the applicant has access to sufficient funds for the duration of her stay.

20. The applicant assured the Tribunal she would not work and would comply with the conditions of any visa granted.  She was aware she required work rights to work in Australia.  She was aware that the visitor visa did not have work rights.  She indicated that while she would like to finish her internship, she knew she could not do so without work rights.   She would care for her young children while she remained in Australia without work rights.

21. The Tribunal is satisfied on the evidence given at hearing by the applicant and her witnesses that she will abide with the conditions of any visa granted, particularly the condition that she must not work.  The Tribunal is also satisfied on the evidence of the applicant that her intention is to visit only and that she will return to Mongolia at the expiry of any visa granted. 

22. 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

23. 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.

    Amanda Goodier
    Member