1516671 (Migration)

[2016] AATA 4110

1516671 (Migration) [2016] AATA 4110 (14 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Mathilda Makkink

VISA APPLICANT:  Mr Jan Steyl

CASE NUMBER:  1516671

DIBP REFERENCE(S):  A04664316

MEMBER:Nicola Findson

DATE:14 July 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 14 July 2016 at 2:56pm

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 17 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 26 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 that the visa applicant intended a genuine visit and would abide by the visa conditions.     

5. The review applicant appeared before the Tribunal on 2 June 2016, to give evidence and present arguments.

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 visiting his sister and her family, who reside as permanent residents in Australia.  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)). The visa applicant has never previously visited Australia and accordingly there are no considerations relevant to cl.600.211(a).

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)).

12. The evidence before the tribunal which is accepted by the Tribunal, forms the basis of the following conclusions and findings:

    ·The review applicant is the sister of the visa applicant.

    ·The visa applicant is 37 years old, and a citizen of South Africa.  His parents as well as his three siblings live in South Africa.  It is his intention to travel to Australia, for up to 4 weeks, to visit the review applicant (the only sibling of the visa applicant who does not live in South Africa), the review applicant’s husband and their two teenage children. 

    ·The review applicant is 51 years old.  She first arrived in Australia on a work visa, with her husband and children, in 2008.  The review applicant and her family, became permanent residents of Australia in 2013, and attained Australian citizenship in May 2014.

    ·The review applicant last saw her family when she returned to South Africa with her husband at the end of 2013.  The purpose of that trip was to attend her niece’s university graduation and to spend time with her parents and siblings.  She is keen for her youngest brother (with whom she is very close) to travel to Australia so that he can spend time with her and her children and see where they live.

    ·The visa applicant is the first close family member of the review applicant to apply to visit Australia.  The parents of the applicants are elderly (90 and 86 years old) and up until now, the other remaining siblings and their families have not been in a position to apply to visit Australia, either because of study commitments or the prohibitive cost.

    ·The review applicant is currently working as a full time Clinical Nurse Manager at an aged care facility in Perth.  Her husband operates a bakery business they purchased about three years ago.  Prior to that he worked in the mining industry.

    ·The review applicant and her husband own a house together.

    ·The review applicant and her husband have no other family in Australia.

    ·The visa applicant rents a flat in Bloemfontein, which is close to where he works.  He has worked for the past few years as a full time nursing assistant at the Life Rosepark Hospital.  The visa applicant generates a good enough income to pay his rent and living expenses as well as build his savings.  His work provides private health and superannuation benefits.  His employer is supportive of him taking leave to holiday in Australia and then returning to his role.

    ·The visa applicant is very close to his parents.  He calls them daily and visits them regularly.  He accompanies them to their medical appointments and drives them to see other family members. 

    ·The visa applicant has a close group of friends he spends time with, watching sport and attending “games” nights.  He has also been in a relationship for almost 12 months, with a girl he met at the church he attends.

    ·The visa applicant is set to inherit his parents’ house when they pass away.  His older siblings all already own houses and are aware of their parents’ intentions in this regard. 

    ·The visa applicant owns a car in South Africa.

    ·The visa applicant has travelled to the United State of America, for the purposes of a working holiday, on 3 separate occasions between 2004 and 2006.  While in the US, the visa applicant carried out farm work.  This was work he was used to as he comes from a family of farmers.  He also travelled there on another occasion, to holiday with friends he had made on previous visits.  He complied with all of the conditions imposed on his visas and returned to South Africa before those visas ceased.

    ·The visa applicant is aware that there are other visa options available to him if he wanted to live and work in Australia.

    ·The evidence before the Tribunal is persuasive that the visa applicant has a settled life in South Africa.  He is surrounded by his family and friends; he holds a good job; and he enjoys his life in his home country.

    ·There is no evidence before the Tribunal suggesting that the visa applicant will engage in study or training in Australia or that he will work in Australia.

    ·Further, the visa applicant does not have any reason to fear returning to his home country.

    ·The review applicant would like other members of her family to be able to visit her and her family in Australia in the future.  She understands that if the visa applicant does not comply with his visa conditions, it will jeopardise his chances, as well as the rest of the family’s chances of travelling to Australia to visit the review applicant in the future.

    ·The Tribunal accepts the review applicant’s evidence that the visa applicant will depart Australia after his visit and return to South Africa because of family and work commitments.

    ·The Tribunal is satisfied that the visa applicant has access to sufficient funds to support himself for the duration of his time in Australia.  The Tribunal is also satisfied that the visa applicant will have limited living costs during his proposed stay, with accommodation and living expenses being provided for by the review applicant.  The Tribunal is persuaded that financial capacity in this regard has been demonstrated.

    ·The Tribunal notes that given the time that has lapsed since applying for the visitor visa and because of the employment commitments of both applicants, it is unlikely the visa applicant will travel to Australia now until towards the end of 2017.

13. Given his personal circumstances, the Tribunal is satisfied that the visa applicant has no intention of leaving his life and loved ones in South Africa, to remain in Australia.  In addition to the preponderance of his family, as well as his girlfriend, living in South Africa, the visa applicant also has work to return to.  The Tribunal also gives weight to the previous visits the applicant has made to the United States of America, and that he returned to South Africa prior to the expiration of his visas.  The visa applicant does have a good reason to visit Australia – to spend time with the review applicant and her family and see where they live.  But, the Tribunal is satisfied that the visa applicant does have very strong personal and economic ties to South Africa, which would encourage him to return there.

14. Taking into account all of the evidence before it, including evidence that was not previously available to the delegate at the time of decision, the Tribunal is satisfied that the visa applicant genuinely intends to stay in Australia temporarily while he is the holder of a visitor visa and will comply with all relevant conditions imposed on the visa.  The Tribunal is satisfied that after a visit to see the review applicant and his family, the visa applicant will depart Australia before his visa ceases.

15. 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

16. 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.

    Nicola Findson
    Member