1517021 (Migration)

[2016] AATA 3587

1517021 (Migration) [2016] AATA 3587 (24 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr HEKETA JAHAMIN

VISA APPLICANT:  Mrs  SUPINI

CASE NUMBER:  1517021

DIBP REFERENCE(S):  BCC2015/3167159

MEMBER:Amanda Goodier

DATE:24 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 24 March 2016 at 12:09pm

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 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 22 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 Sponsored Family 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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 23 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s sister and brother-in-law as well as the review applicant’s daughter and son and the migration agent assisting with the visa applicant’s partner visa application.

6. The review applicant was represented in relation to the review by his brother-in-law.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of spending time with her husband. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. 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)).

11. The evidence before the Tribunal indicates that the visa applicant has complied substantially with all previously held visas for Australia.

12. 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.600.612):

    ·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.

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

14. The visa applicant is seeking the visa to be with her husband while her application for a partner visa is processed.  She has sought a stay of up to 12 months in Australia.  She indicates in her application form that her husband will support her during her stay in Australia.  She describes her employment as home duties.  She indicates her mother, one sister and three sons will be remaining in Indonesia.  She has one sister living in Australia. 

15. The review applicant has provided a copy of his marriage certificate as evidence of his relationship with the visa applicant.   He indicates she will be staying with him and he will be responsible for all airfares, food, medical expenses, spending money and any other expenses she may incur.  He has been employed by the same firm for the past 15 years on a permanent part-time basis and lived at the same address for the last 10 years.  He has sufficient income to support the visa applicant for the duration of her stay. 

16. The Tribunal was also provided with a copy of the application for a partner visa lodged in Jakarta on 29 June 2015.  The Tribunal was also provided with a copy of the Tribunal decision dated 22 April 2014 in relation to her application for protection.

17. The visa applicant’s brother in law provided a copy of his letter to the delegate seeking the decision to be reviewed.  In this letter he states he is the financial sponsor of the visa applicant.  Even though she has a spouse, he and his wife take responsibility for the review applicant’s activities while in Australia.

18. The Tribunal received a letter from the review applicant indicating he has a medical condition and does not want to put himself under unnecessary strain.  This is an extremely important matter to him as he needs his wife here to care for him as his medical condition requires him not to be placed under any unnecessary strain.  He provided a copy of a hospital letter addressed to his medical practitioner providing a diagnosis as well as a copy of a medical report as to his last attendance in hospital.

19. The review applicant indicated that his wife was not working as there is no work in the village where she lives.  She lives with her mother and siblings while she is waiting for her partner visa to be granted.  However, as that takes time and he is unable to live in Indonesia for health reasons, he would like his wife to stay with him in Australia.  He spent time with his wife in Indonesia over the summer period.  He will make sure his wife goes home prior to the visa expiring as she has always complied and will not do anything that will affect the grant of her partner visa. He said his wife will eventually work in Australia.  The Tribunal pointed out that one of the conditions of the visa was that she would be unable to work in Australia or participate in any study or training over 3 months duration.  The review applicant told the Tribunal that she will stay with him and he will support her financially for the duration of her stay.  He also indicated that the visa applicant’s sister and brother-in-law will assist financially by paying for her airfares.  The visa applicant’s brother-in-law indicated that they will assist financially with the visa applicant’s stay in Australia.

20. It was indicated to the Tribunal that even though the visa applicant had applied for a permanent visa to enter Australia, her purpose for applying for this visa was to spend time with her husband while her permanent visa was being determined and that she would comply with the conditions of the visa and depart at the expiry of the visitor visa.  It was put to the Tribunal that she genuinely intended to visit her husband, which was the purpose of this visa.  The Tribunal was also told that all her financial requirements would be met for the duration of her stay.

21. The review applicant indicated he was prepared to pay a substantial bond if required to guarantee his wife will depart Australia at the end of the visa. 

22. While the Tribunal acknowledges that the visa applicant has applied for a permanent visa to reside in Australia, it considers that this is not inconsistent with the purpose of this application which is an intention stay temporarily in Australia to visit her husband.

23. The Tribunal has considered the evidence before it and while it has concerns that the applicant’s overriding intention may be to eventually reside permanently in Australia, it is satisfied that in these particular circumstances and based on the evidence of the review applicant and the witnesses as well as the willingness of the review applicant to pay a substantial bond to guarantee her departure, the visa applicant will comply with the conditions of the visa and depart Australia at the end of her permitted stay. 

24. 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

25. 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