1602482 (Migration)

[2016] AATA 4798

1602482 (Migration) [2016] AATA 4798 (6 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sylvia Harvey

VISA APPLICANT:  Ms Amanda Human

CASE NUMBER:  1602482

DIBP REFERENCE(S):  BCC2016/145572

MEMBER:Jane Marquard

DATE:6 December 2016

PLACE OF DECISION:  Sydney

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 06 December 2016 at 1:16pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor)(Class FA) – Genuinely intends to stay temporarily - Proposed brief visit only – Assist review applicant through family issues – Well-established life in South Africa – Strong incentive to return - Previous compliance with visa conditions by other family members – Decision under review set aside

LEGISLATION

Migration Act 1958, Schedule2, cl.600.211, cl.600.611(2))

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The visa applicant is a 45 year old national of South Africa. She applied for a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act) on 11 January 2016. The visa applicant stated that she wishes to visit her sister, the review applicant, who is an Australian citizen.

2. A delegate of the Minister for Immigration and Border Protection (the Department) refused her application on 4 February 2016.

3. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

4. 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.

5. 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.

6. 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 that the applicant genuinely intended to stay in Australia temporarily for the purpose for which the visa was granted.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In coming to a decision, the Tribunal has taken into account the evidence in the Department and Tribunal files, and evidence of the review applicant and visa applicant at a hearing of the Tribunal on 15 November 2016.

9. In this case, the Tribunal finds that cl.600.211 is met, as it is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

10. The reasons for this decision are set out below.

11. The applicant provided additional documentary evidence to the Tribunal. This included:

    ·A letter from Hirt and Carter, South Africa, dated 18 October 2016, confirming that the visa applicant is permanently employed by them as a DTP Operator. The letter stated that she would be visiting Australia from 10 February 2017 until 4 March 2017 and then returning to work on 6 March 2017;

    ·Flight details for the visa applicant including details of a return flight on 4 March 2017;

    ·A request to the Department from the review applicant, that the visa applicant be granted a visa for 3 weeks instead of 12 months, as she now had a permanent job;

    ·Bank account details for the visa applicant showing a credit of ZAR 1,788.27 in October 2016;

    ·Bank account details for the review applicant displaying a balance of $1415.02 as at August 2016;

    ·Marriage certificate for the visa applicant and Herman Human dated 2005;

    ·Divorce certificate for the visa applicant dated 2013;

    ·Marriage certificate for the review applicant dated 2004;

    ·Police clearance certificate for the visa applicant dated 2015;

    ·Character reference for the visa applicant from Martine Griffith;

    ·Birth certificates for the review and visa applicant;

    ·Letter from the review applicant dated 7 January 2016 stating that she was an Australian citizen and had invited her sister to visit to help her look after her children as she had recently separated. She had been struggling to meet the demands of raising two young children and working as a physiotherapist. Her sister would help with chores and the children. She would live with the family and be provided with food. She would also be paying for her sister’s health insurance and other day-to-day expenses. Her other sister, Monica O’Neill (Pienaar) would provide further financial support during this time if needed. She would ensure that her sister would comply with all visa conditions, and would leave Australia on or before the expiry of her visitor visa. Her sister would be looking forward to spending time with her nieces;

    ·Letter from the review applicant dated 25 February 2016 to the Tribunal stating that she should be allowed to see her sister. Her children are her sister’s only nieces and she has not seen them often. She cannot afford the airfares for all of her family to travel to South Africa but can afford one airfare for her sister to travel to Australia. She vows that the visa applicant will not stay in Australia illegally.

12. At the Tribunal hearing the review applicant stated that the primary purpose of the visit is for the family to see each other, and for her sister to spend time with her children, who are aged nine and five. The Tribunal accepts that the visa applicant is the sister of the review applicant as birth certificates have been provided.  Originally she thought she could stay longer and help with the children, but the visa applicant has to return to work in South Africa, so they are only requesting a visa for a short visit. They would like to go to an Australian wildlife park and do some tourist activities, but the main purpose is to spend time together. They may visit their friend in Brisbane. The visa applicant stated that she has not seen her sister for five years, and wants to spend time with her. The Tribunal is satisfied that the visa applicant seeks the visa for the purpose of visiting her sister and children. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

13. 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)).

14. The Tribunal notes that according to the Departmental records and evidence of the applicants, the visa applicant visited Australia in October 2007, complied with her visa conditions and departed within the period of the visa. There is no other information before the Tribunal to indicate any non-compliance with visa conditions. On this evidence, the Tribunal accepts that the visa applicant has complied with visa conditions of the last visa held. Furthermore, she has also travelled to other countries and always complied with visa conditions. The Tribunal notes also that the review applicant’s father and his wife have visited Australia, as has the review applicant’s sister on two occasions. There is no evidence that these relatives did not comply with visa conditions. This is persuasive evidence that another relative in the family, another sister, will also comply with visa conditions.

15. The Tribunal accepts that the visa applicant genuinely intends to stay temporarily in Australia. She has a full-time job which is confirmed in writing by her employer. The letter from her employer stated that she had been given leave to travel to Australia. The visa applicant told the Tribunal that her employer is a large retail company. She is responsible for layout, advertising and marketing. She sees the job as long-term as there is a sought-after company culture and employees are looked after. There are also good prospects for promotion. The Tribunal accepts that this job provides significant incentives for the visa applicant to return to South Africa at the end of her visit.

16. The visa applicant also has other incentives to return to South Africa. As she has no children, she is very committed to her dogs, two Jack Russells whom she calls “dog children”, and would be unable to leave them behind. She also has a large extended family in South Africa, with whom she is close. She is particularly close to her grandmother, aged 92, and her other sister, Monica, who lives close by. She visits her grandmother every weekend and would not leave her, as her grandmother would be very lonely without her. The visa applicant also has many close friends in South Africa. She has two girlfriends who live nearby. They are all athletic and do many activities together. She also enjoys her living environment. She has a lease on a small holding. There are horses there and she is a competitive showjumper. She loves being surrounded by nature and animals. She gets on well with the women living in the other cottages on the land. She also has a boyfriend. She says that she is in a “good place” and also has a lot of hope for her country.

17. The review applicant presented as a responsible and committed citizen. She is working as a physiotherapist in a number of hospitals. She has two children. These children are very much looking forward to spending time with their aunt. The review applicant has a regular income (as supported by documentation), and would be able to support her sister while on her visit in Australia, with food, accommodation and living expenses. The Tribunal accepts her evidence that it is just not in the nature of her character, or that of her family, to break laws. The Tribunal accepts that they are “honest people who do not believe in breaking the law”. The review applicant is also aware of the consequences for her, were the visa applicant to overstay her visa.

18. The Tribunal notes also that the applicants have lost a number of family members, and that this is another reason they wish to spend time together, to share the grief and memories.

19. 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.

20. These conditions were discussed with the review applicant and the visa applicant. The review applicant indicated that she was aware of the conditions imposed and would ensure her sister’s compliance. The visa applicant also indicated that she would apply with these conditions, and for all the reasons set out above in relation to incentives to return, and the integrity of the applicants, this is accepted by the Tribunal.

21. 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.

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.

    Jane Marquard
    Member