1611411 (Migration)

[2016] AATA 4298

1611411 (Migration) [2016] AATA 4298 (29 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sohel Md Rana

VISA APPLICANT:  Mr Taibur Md Rahaman

CASE NUMBER:  1611411

DIBP REFERENCE(S):  V16/1545

MEMBER:Suzanne Carlton

DATE:29 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 29 August 2016 at 11:58am

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 27 June 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 1 June 2016. 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 the visa applicant genuinely intended to only visit Australia. The delegate was concerned that the visa applicant’s intention to provide emotional and care support for his son and daughter-in-law would not be a short-term commitment commiserate with the intentions of a visitor visa. 

5. The review applicant appeared before the Tribunal on 29 August 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. The visa applicant is a 60-year old Bangladeshi man.  He is married and would be travelling with his wife.  His eldest son continues to live in Bangladesh, as do the visa applicant’s siblings.  He and his wife have a farm, which their eldest son will be looking after in their absence.  That son also has his own farm and his own family, so this situation, on a long-term basis, would be untenable. 

9. The visa applicant is also employed as an electrician and he has provided evidence that his employer will provide him leave to undertake this visit.  He works with that employer as a contractor, working only a few months a year.

10. Neither the visa applicant nor his wife has previously undertaken overseas travel.  The review applicant, their son, is an Australian permanent resident and gainfully employed.  He and his wife have previously sponsored his wife’s mother and she appears to have complied with all visa conditions of her visitor visa.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting his son, daughter-in-law and their new granddaughter and to provide short-term support for the family in light of his daughter-in-law’s illness. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

12. 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)).

13. As the visa applicant has not previously held an Australian visa, the Tribunal makes no findings as to past compliance.

14. 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.

15. As noted, the visa applicant is a 60-year-old man. He has limited English language ability.  Given his circumstances, his age and the assurance of his son, the review applicant, I am satisfied that the visa applicant will comply with conditions 8101 and 8201.

16. Conditions 8503 and 8531 are more problematic.  The visa applicant’s country of origin, Bangladesh is clearly a source country for migrants and refugees to Australia.  On the other hand, there is nothing about the applicant’s profile to indicate that he would be a high risk visitor in this respect.

17. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  I give weight to the good sponsorship compliance history of the review applicant and his wife.    

18. I have also had regard to the compassionate circumstances.  I note that the visa applicant and his wife had applied for visas permitting them to stay until their grandchild was one-year old, when the support they were providing would likely be no longer needed.  I give weight to the evidence that the support being provided would only be required until January 2017.  Having considered the illness of the review applicant’s wife, the birth of their child and the additional complications the family are facing, I consider that compassionate circumstances outweigh the relatively low risk of non-compliance.

19. 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

20. 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