1602517 (Migration)

[2016] AATA 4259

1602517 (Migration) [2016] AATA 4259 (12 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Aisham Nasir Bake

VISA APPLICANT:  Mrs Nasier Maliyamu

CASE NUMBER:  1602517

DIBP REFERENCE(S):  BCC2015/2999656

MEMBER:Suzanne Carlton

DATE:12 August 2016

PLACE OF DECISION:  Adelaide

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 12 August 2016 at 4:17pm

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 11 January 2016 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 9 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 intended to only visit Australia. 

5. The review applicant appeared before the Tribunal on 12 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s daughter, Flora Schneider, and the review applicant’s husband, Aziz Bake.  The Tribunal hearing was conducted with the assistance of an interpreter in the Uyghur and English languages.

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 her sister and family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)).

10. The visa applicant has previously visiting Australia and held a visitor visa in 1995, 2004 and 2006.  On all three occasions, she appears to have complied with the conditions of her visa.

11. 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.

12. The conditions were discussed with the review applicant.  She has indicated that she is aware of the conditions that would be imposed and will ensure her sister’s compliance.  The Tribunal puts significant weight on the visa applicant’s past compliance.

13. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal notes that the visa applicant is in her 70s and does not speak English. She is a highly regarded artist in China and is recognised as such by both the Regional Authority and Central Chinese government.  Her siblings and friends and social circle are all in China.  In addition to her sister here in Australia, she has an adult son living here. The Tribunal has had regard to the presence of family members both in Australia and in China. 

14. Finally, the Tribunal has had regard to the situation in the visa applicant’s country of nationality, being China, and notes that while some persons of Uighur ethnicity in China may have high risk profiles for overstaying, there is nothing to indicate that the visa applicant herself has a high risk profile for overstaying.  To the extent that the delegate continues to have concerns in this regard, I consider that these concerns can be addressed by the imposition of a bond, which has been proffered by the review applicant.

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.

    Suzanne Carlton
    Member