1516229 (Migration)

[2016] AATA 4184

1516229 (Migration) [2016] AATA 4184 (22 July 2016)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Awais Khan

CASE NUMBER:  1516229

DIBP REFERENCE(S):  BCC2015/3143697

MEMBER:L. Hawas

DATE:22 July 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; and

·cl.600.212 of Schedule 2 to the Regulations.

Statement made on 22 July 2016 at 4:03pm

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 9 November 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 27 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. The Regulations also include cl. 600.212, which requires the visa applicant to satisfy the minister that he or she has adequate means of support, or access to adequate means, during the period of intended stay.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. At the time the applicant applied for the subclass 600 visitor visa, he was lawfully working onshore in Australia on a skilled – recognised graduate visa (subclass 476), which was to expire on 10 November 2015. Shortly after the applicant applied for the subclass 600 visa, the department sent the applicant a letter dated 28 October 2015 in which it sought, amongst other things, evidence from the applicant that he had ceased employment. The applicant did not respond to the letter. The delegate refused to grant the applicant the subclass 600 visa primarily on the grounds that he had not given the department evidence of having ceased employment. As continued work would constitute a breach of the terms of a subclass 600 visa, the delegate refused the application. The circumstances surrounding the delegate’s decision to refuse to grant the subclass 600 visa are referred to in more detail below.

5. The applicant appeared before the tribunal on 3 June 2016 to give evidence and present arguments. The applicant was represented in the review by his registered migration agent, who also attended the hearing.

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 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.

   The applicant’s evidence

8. In the present case, the applicant seeks the visa for the purpose of travelling around Australia after having worked here under his subclass 476 visa since mid 2014. This is a purpose for which a visa in the tourist stream may be granted: cl.600.221 and cl.600.222.

9. The applicant is a single 31 year old male who was born in Rawalpindi, Pakistan on 17 December 1984. He holds a master’s degree in science (communication engineering), which he obtained from the University of Manchester in Great Britain before coming to Australia. He was granted a skilled – recognised graduate visa (subclass 476) on 27 February 2014, which allowed him to enter Australia and work for 18 months after first entering on that visa. He first arrived in Melbourne on 10 May 2014, which triggered the 18 month period of the 476 visa. That visa was to expire on 10 November 2015. Soon after arriving, he commenced working for Scalzo Food Industries as a production employee, where he worked for about five months. After leaving Scalzo he commenced work for Bega Cheese as a production employee, where he remained employed until 1 June 2016.

10. On 27 October 2015, the applicant applied for a subclass 600 visitor visa (tourist stream). The department subsequently granted him a bridging A (class WA) visa, which came into effect when the applicant’s subclass 476 visa expired on 10 November 2015. The bridging visa A entitled the applicant to remain in Australia and work until 28 calendar days after being notified of a decision by the department on his subclass 600 visa application, or 28 calendar days after being notified of a decision by this tribunal in review of the decision by the department to refuse the original visa application.

11. At the time the applicant applied for the subclass 600 visa, he was still working for Bega Cheese. His subclass 476 visa still had a little over a fortnight left to run (to 10 November 2015). In his application, the visa applicant stated that he sought an extended stay in Australia (beyond the time allowed by his 476 visa) until 20 October 2016 in order to travel around Australia. By letter to the applicant dated 28 October 2015, the delegate informed the applicant that he required additional information before he could consider the application further. The delegate sought within seven days evidence that the applicant had ceased employment, evidence that the applicant had adequate funds to support his extended stay in Australia under a visitor visa (which did not entitle the applicant to work), a description of the applicant’s planned activities during an extended stay as a visitor, and the delegate required the applicant to undergo a health examination. The letter was addressed to the visa applicant at his residential address in Melbourne’s northern suburbs. The letter was also apparently sent to the visa applicant’s migration agent by email.

12. The applicant did not respond to the delegate’s 28 October 2015 letter, and did not give the delegate the evidence and information he had sought.

13. The visa applicant’s failure to respond to the delegate’s letter, and his failure to provide the delegate with the evidence and information sought, resulted in the delegate refusing the visa application. In the decision record, the delegate noted correctly that while in effect, a visitor visa carries the mandatory 8101 ‘no work condition’. As the applicant had stated in his visa application that he was employed at the time of applying, and had not provided evidence that he had ceased that employment, the delegate was not satisfied that the applicant intended to comply with the no work condition to which a tourist visa would be subject. Accordingly, clause 600.211 was not met.

14. The delegate notified the applicant of his decision by letter dated 9 November 2015 addressed to the applicant’s residential address and to the migration agent’s email address. The applicant applied to the tribunal for a review of the delegate’s decision on 26 November 2015, which had the effect of extending the applicant’s bridging visa A pending the outcome of this review.  

15. During the hearing, the tribunal asked the visa applicant to explain why he did not respond to the delegate’s 28 October 2015 letter. The applicant said that he did not receive the letter in the post. He accepted that he had received the letter by email (presumably from his migration agent), but by the time he opened his email account to review his emails, the delegate had already decided to refuse the visitor visa application, and had notified the applicant of that decision. The applicant said he received the delegate’s decision letter and decision record by email, and he read the decision at the same time as he read for the first time the 28 October 2015 letter.

16. The Tribunal accepts the visa applicant’s explanation for not responding to the delegate’s 28 October 2015 letter. The tribunal observed the applicant give his evidence. His answers were prompt and forthcoming and he presented as a credible witness.

17. The applicant’s migration agent filed written submissions dated 2 June 2016 in the Tribunal, and he spoke to those submissions during the hearing. The following documents were attached to the submissions

    (a)A statement dated 1 June 2016 from the applicant describing his planned travel activities in Australia if he were to be granted a visitor visa. The applicant stated that he planned to visit destinations in Queensland and Western Australia as well the Grampians, the Twelve Apostles, and the Great Ocean Road in Victoria;

    (b)A letter dated 1 June 2016 on Bega Cheese, letterhead which stated that the applicant’s employment with the business ceased on 1 June 2016;

    (c)A letter dated 2 June 2016 from the Commonwealth Bank of Australia, which stated that an account in the applicant’s name was in credit for $15,555.67[1]; and

    (d)A tax invoice from Bupa Medical Visa Services Pty Ltd dated 23 May 2016 in the amount of $291.90 for a medical examination and chest x-ray.[2]             

    [1] An extract showing a running balance of the same account dated 7 June 2016, which the applicant subsequently submitted to the tribunal, stated that there was $15,984 available to withdraw.

    [2] The results of the medical examination were not yet available.

18. During the hearing, the applicant said that once he had completed his planned travel around Australia, he will return to Pakistan and seek work in the area in which he was now qualified after his tertiary studies in Great Britain. The applicant said that he wanted to remain in Australia until 20 October 2016 (the time to which he had originally applied to stay as a tourist) to complete his planned travel. He said that he planned to travel with two or three friends.

19. The applicant does not have any family in Australia. All of his family are in Pakistan including his parents and his sisters.

20. The applicant said during the hearing that he proposed to use the savings in his Commonwealth Bank account to fund his travel in Australia and his further stay generally. He said that he considered his savings to be sufficient to fund his further stay. However, if he required more money, his parents in Pakistan would send him more. He said that his parents owned substantial assets and had significant savings in Pakistan and had the means to support him in Australia if necessary. That was evidenced, according to the applicant, by his parents having paid for his tertiary studies at the University of Manchester.

    Assessment of evidence and findings

21. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the stated 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)). As stated above, the applicant held a subclass 476 visa, which expired on 10 November 2015, and remains in Australia on a bridging visa A pending the outcome of this review. The applicant remained employed until 1 June 2016, which employment outlasted the subclass 476 visa. However, the applicant’s employment was within the conditions of the bridging visa A. The applicant has not breached the conditions of either of those visas. The department’s records also reveal that on 8 April 2016 the applicant was granted a bridging visa B to allow him to travel out of Australia and return. There is no evidence that the applicant has breached the conditions of that visa.  

22. 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; and

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

23. The Tribunal is satisfied that the applicant genuinely intends to comply with those conditions of a subclass 600 visa. The applicant has submitted a letter from his last Australian employer Bega Cheese stating that he had ceased employment with that business on 1 June 2016. The visa applicant originally applied for an extended stay until 20 October 2016, a little under three months from now. There is no evidence before the tribunal which would suggest that the applicant will seek new or further employment for three months. The applicant holds a master’s degree and is unlikely to seek to study or train in Australia over that time.

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

25. After taking into account the information the applicant gave to the tribunal in the review, the applicant’s oral evidence, and the written and oral submissions the applicant’s agent made, the tribunal is satisfied that the applicant 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. The Tribunal also finds that the applicant has sufficient means to support his proposed stay in Australia and finds that the requirements of cl. 600.212 are met.

26. As stated above, the applicant has now provided the evidence and information the delegate had sought in his 28 October 2015 letter. Further to the 1 June 2016 letter from Bega Cheese stating that the applicant was no longer employed in that business, the applicant has described satisfactorily his planned travel activities in Australia for the duration of his proposed stay, has provided evidence of having undergone a medical examination, and according to his bank, has a little under $16,000 standing to his credit in his bank account. The tribunal is satisfied that the applicant has sufficient means to support his proposed extended stay in Australia as a tourist, which is for a little under three months from now.

27. The tribunal considers that the applicant has a strong family incentive to return to Pakistan once a visitor visa expires. The applicant’s family is in Pakistan and he does not have any family ties to Australia.

28. Having already worked in Australia, the applicant is in a position to appreciate the favourable commercial conditions in Australia compared to those in the less developed economy in Pakistan. He is in a better position than most visitors to understand that he might be better off financially staying in Australia. The applicant’s record of work and earning in Australia and his earning potential here if he were to stay would constitute some incentive for him to remain. However, given that the applicant has tertiary qualifications from a western university, his career prospects in Pakistan would be more promising than those of a less educated and qualified citizen of that country. The Tribunal considers that the applicant’s relatively more promising career prospects in Pakistan and his family’s location there constitute sufficient incentive for him to return.

29. On balance, the tribunal is satisfied that the applicant intends to stay temporarily in Australia for the purpose for which the visa is to be granted.

    DECISION

30. 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; and

    ·cl. 600.212 of schedule 2 to the Regulations.

    L. Hawas
    Member