1514854 (Migration)
[2016] AATA 3059
•20 January 2016
1514854 (Migration) [2016] AATA 3059 (20 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mrs Yelyzaveta Tymoshevska
VISA APPLICANT: Mr Pavlo Tymoshevskyi
CASE NUMBER: 1514854
DIBP REFERENCE(S): BCC2015/2513293
MEMBER:Michelle Grau
DATE:20 January 2016
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
·PIC 4011 for the purposes of cl.600.213 of Schedule 2 to the Regulations
Statement made on 20 January 2016 at 4:07pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 October 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 29 August 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.
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 visa applicant did not meet cl.600.211 because she was not satisfied the applicant intended a genuine visit or that the applicant would abide by visa conditions..
The review applicant appeared before the Tribunal on 18 January 2016 to give evidence and present arguments. At hearing the review applicant requested the hearing be combined with application 1514853, which was in respect of the review applicant’s mother’s visitor visa application. The review applicant confirmed she wanted evidence to be used in respect of both applications.
The Tribunal also received oral evidence from the visa applicant’s wife on behalf of the visa applicant as the visa applicant was hard of hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing, who attended the hearing by telephone.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In the present case, the visa applicant seeks the visa for the purposes of visiting his daughter and grandchildren. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221.
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)).
The tribunal accepts the visa applicant has previously held a visitor visa in 2007 and complied with the conditions and returned to the Ukraine before the expiry of the visa.
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
The Tribunal has also considered all other relevant matters (cl.600.211(c)).
The visa applicant is a retired factory worker who receives a pension. He retired only 5 years ago at the age of 80. He is married and his wife is a retired teacher and receives a pension. They live together in Luhansk in their own apartment.
The tribunal accepts the visa applicant will not work or study in Australia as he is retired and receives a pension and wants to visit his grandchildren and daughter. The tribunal accepts the visa applicant will comply with the mandatory visa conditions of no work and no study. cl.600.611(3)
The Tribunal has also considered all other relevant matters (cl.600.211(c)).
Given the visa applicant was from an area in the East Ukraine which was in conflict in 2014 – 2015, the tribunal was concerned about the visa applicant’s incentive to return to Ukraine at the end of their visit. The tribunal discussed its concerns at hearing.
The evidence from the review applicant and visa applicant’s wife was that during the conflict the visa applicant and his wife moved out of the area and rented a house with another family in Vyshgorod. They moved back to Luhansk at end of summer in September 2015. They own their own apartment in Luhansk. The situation was stable and they carried on with their life. They had no problems with electricity, food or water and there was no conflict or other problems anymore and the situation was stable. The visa applicant’s wife said if in while in Australia conflict broke out again, they would return to live with the visa applicant’s sister as she had offered before and she would support them.
Even though her parents lived in the new independent area in Luhansk, the review applicant confirmed the shops, restaurants, schools and entertainment was open and life had returned to normal. Her parents were not politically active or interested in the conflict but interested in getting on with their life. They speak Russian and Ukrainian. Her mother was a teacher of Ukrainian language and was a professor. She has a sister who lives about 20 kms away from them. She has her hobbies, like teaching and embroidery and visits friends and does charity work with children. The review applicant’s father used to be a factory worker but he only retired 5 years ago. He loves his books, visits neighbours and his very close to his sister also. The review applicant said their pensions were good and sufficient for their needs. The review applicant sent them some money last year when they moved back home, but she does not send them money regularly. In fact, her parents sent the review applicant some money.
The review applicant confirmed her parents had been approved for parent visas last year and had a queue date. Her father was 85 and her mother younger but they were in good health. The visa applicant had recently been on a 3000km bus trip through to Russia to visit his sister and cousin. They were in good health and occasionally took blood pressure medication if needed.
The review applicant confirmed her parents had been refused visitor visas in 2014 and she understood this was because it was in the middle of the conflict, but the situation is improved and stable now. She wants her parents to visit and see the grandchildren and is seeking a multiple entry for them for 6 month visits.
The tribunal accepts the review applicant and visa applicant are credible witnesses. They gave clear, unambiguous, unembellished evidence. The tribunal accepts the visa applicant has financial and personal ties in Ukraine as he owns an apartment with his wife, has a pension and has a sister and friends in the Ukraine. The tribunal also accepts he has personal ties in Australia as his only child and grandchildren are in Australia.
The tribunal was also concerned about possible future conflict in the area where they live and notes the review applicant wanted them to visit her during the conflict in 2014, but that application was refused. The agent submitted the Minsk agreement has stabilised the situation in the area and the visa applicant has returned to the area and unaffected and submitted the situation would remain stable.
The tribunal has had regard to country information about the situation in the Ukraine, particularly in the visa applicant’s home area which is in the contested zone.[1] However, it was evident that the visa applicant managed to survive the conflict and make other arrangements and rented out of the area and they have returned without any problems. The visa applicant and his wife continue to live in Luhansk without any problems and have continued to carry on with retirement life. The tribunal accepts that the visa applicant is not interested in politics or the conflict and that he would abide by the visa conditions and return to the Ukraine even if conflict arose again. The tribunal accepts that he has alternative options available in the Ukraine if that were to happen again as he could live with his sister and he is very close to her. Further, it was evident that the visa applicant and his wife have navigated and managed the past conflict with alternative living arrangements for a temporary period when they rented a house away from the conflict area.
[1]>Further, the visa applicant has abided by a previous visitor visa in 2007 and returned to the Ukraine before the visa expired. He has also travelled recently to Russia and returned home. Also given the visa applicant has been approved for a parent visa and it may be some years before it is granted, the tribunal considers this is a further incentive to abide by visitor visa conditions and return at the end of the visa. The tribunal also considers the visa applicant plans on future visits to Australia to see his only child and this is a strong incentive for the visa applicant to abide by conditions of this visitor visa. The tribunal has had regard to the visa applicant’s age but it accepts that his health is good and he has recently been on a long bus trip. Further, the tribunal considers there is an incentive to abide by the visa conditions and continue with a good immigration history to ensure he would not jeopardise future visits for himself or his wife.
Based on the evidence before it, the tribunal finds the visa applicant has family, personal and financial ties in Ukraine and the tribunal accepts the visa applicant given his age and desire to be able to continue to visit Australia in the future that the visa applicant will abide by the visa conditions and genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The fact that he abided by visa conditions previously further reinforces the tribunal’s view that he genuinely intends to visit.
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.
PIC 4011
A further requirement for this visa is that the visa applicant meets certain public interest criteria, including Public Interest Criterion (PIC) 4011: cl.6000.213. PIC 4011 provides that, if the applicant is affected by the risk factor specified in PIC 4011(2), the applicant must satisfy the Minister that, having regard to the applicant’s circumstances in the applicant’s country of usual residence, there is very little likelihood that the applicant will remain in Australia beyond the authorised period of stay.
An applicant is affected by the risk factor if, during the period of 5 years immediately preceding the application, the applicant has applied for a visa for the purpose of permanent residence in Australia: PIC 4011(2)(a). (There is no current instrument for the purposes of PIC 4011(2)(b).)
The visa applicant has also applied for an aged parent visa in the last five years and according to the review applicant this was approved in 2015 and her parents are now waiting in the queue, which could be many years. The tribunal accepts in the meantime the visa applicant and his wife want to be able to visit their daughter and grandchildren. The tribunal considers this is a strong incentive for the visa applicant to abide by conditions and not to remain in Australia beyond the authorised period of stay. Further, the visa applicant has previously abided by visa conditions and returned before expiry of his visa. He has also travelled recently to Russia and returned home. The tribunal accepts that the plan is for the parents to migrate later, but not at the moment. The tribunal accepts the review and visa applicant’s wife’s evidence that the visa applicant’s health is good and they are “long livers”. The tribunal has considered the visa applicant’s circumstances, including his age and the country information about the situation in the Ukraine and on balance the tribunal finds there is very little likelihood that the applicant will remain in Australia beyond the authorised period of stay.
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
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
·PIC 4011 for the purposes of cl.600.213 of Schedule 2 to the Regulations
Michelle Grau
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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