1825589 (Migration)

[2020] AATA 6022

1825589 (Migration) [2020] AATA 6022 (29 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1825589

MEMBER:Joseph Lindsay

DATE:29 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 29 October 2020 at 12:40pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – small business and property in Indonesia – previous visa non-compliant visit – previous unlawful seven-year residence – protection visa application – demonstrated history of intent to stay in Australia permanently – COVID-19 safety concerns – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 359, 360

Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612; Schedule 8

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 12 July 2018 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 4 July 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different `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. An audio hearing was held on 28 October 2020. The hearing was a combined hearing for case number 1820511, in which the visa applicant was [Mr A], and case number 1825589, in which the visa applicant was [the visa applicant] (a minor).

5. [Mr A] attended the hearing by audio and spoke on behalf of his daughter, [the visa applicant] (a minor). [Mr A] was assisted by an interpreter in the Indonesian and English languages.

6. [The review applicant] also attended the hearing by audio and spoke on behalf of her son, [Son A] (a minor). [The review applicant] did not require the assistance of an interpreter and spoke in English with the Tribunal.

7. The Tribunal notes that when the application for review was made to the Tribunal in 2018, [the review applicant] put both herself and her son, [Son A], as review applicants. [Son A] is an Australian citizen and is a minor. [Son A’s] biological father was an Australian citizen who is now deceased. [The review applicant] is a permanent resident. [Mr A] is presently [the review applicant’s] spouse. [The visa applicant] is a child of [the review applicant] and [Mr A]. Both [Mr A] and [the visa applicant] are Indonesian citizens and are presently in Indonesia, whilst [the review applicant] and her son [Son A] are in Australia. [The review applicant] also provided information to the Tribunal indicating that she had recently given birth to her child, [named], in Australia on [date].

8. In the hearing, the Tribunal discussed with [the review applicant] who should be the appropriate review applicant in the circumstances. After some discussion, [the review applicant] agreed that it would be appropriate to remove [Son A] as a review applicant and that she, [the review applicant], would be the review applicant for both case number 1820511 and case number 1825589. The Tribunal also notes that initially [the review applicant] indicated that [Son A] wanted to speak to the Tribunal, but after some discussion [the review applicant] indicated that it would be preferable that [Son A] not directly speak with the Tribunal and that she would speak for him on his behalf.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, [the visa applicant] seeks the visa for the purposes of visiting [the review applicant], who is an Australian permanent resident. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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. 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.

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

15. In the hearing, [the review applicant] indicated that her intent was to now stay in Australia permanently with her son, [Son A], and her new baby. [The review applicant] indicated that she wanted [Son A] to attend school in Australia.

16. The Tribunal asked [the review applicant] what her intent was in respect to [Mr A] (her husband) and [the visa applicant] (her daughter). In response, [the review applicant] indicated that she simply wanted her husband and daughter to visit her in Australia. [The review applicant] then indicated to the Tribunal that she did not want her husband or daughter to stay with her permanently in Australia. When the Tribunal asked [the review applicant] why she did not want her husband and daughter to stay, [the review applicant] indicated that her husband has reasons to return to Indonesia, because he had property and a small business in Indonesia. However, while [the review applicant] initially indicated she only wanted her daughter to visit her and then return to Indonesia, [the review applicant] subsequently admitted that she very much wanted her daughter to stay permanently with her in Australia.

17. The Tribunal then spoke to [Mr A]. [Mr A] initially said that he just wanted a visitor visa to come to Australia. [Mr A] indicated that he realised that the visitor visa was a temporary visa and that he did not want to stay in Australia permanently. [Mr A] indicated that his intent was to come to Australia for a visit and then return to Indonesia with his [daughter].

18. However, in further discussion and in the presence of [the review applicant], [Mr A] made the following admissions to the Tribunal:

    a.        he has been to Australia before;

    b.        he first came to Australia in August 2005;

    c.        he came to Australia on a work visa for a period of about 2–3 months;

    d. he did not return to Indonesia after 2–3 months but rather he stayed in Australia;

    e.he stayed in Australia unlawfully for about 7 years;

    f.he made an application for a protection visa when he was in Australia, which was refused by the delegate;

    g.he applied for review of the delegate’s decision at the Tribunal, but was unsuccessful in the review;

    h.he applied for Ministerial Intervention;

    i.he then voluntarily returned to Indonesia;

    j.he has not been harmed since his return to Indonesia and he does not fear anyone or anything in Indonesia.

19. In respect to the admissions he had made to the Tribunal, the Tribunal put to [Mr A] that his admitted actions may indicate that he had expressed an intent to stay in Australia permanently, and he admitted that he wanted to stay in Australia because he had applied for asylum. When asked why he returned to Indonesia if he had claimed fear of returning to Indonesia, he said that it was because his protection visa had been refused.

20. When again asked about his intent with regard to the visitor visa, [Mr A] said that he only wanted to stay in Australia temporarily. When the Tribunal put to [Mr A] that the presence of his wife and [Son A] and [Mr A’s] newborn son in Australia may be strong reasons for him to want to stay in Australia permanently and not stay temporarily, he said “no.”

21. When the Tribunal asked [Mr A] if he was also speaking on behalf of his daughter, [the visa applicant], he said “yes.” [Mr A] indicated that he would return to Indonesia with his daughter, [the visa applicant], if they were both granted visitor visas.

22. The Tribunal then spoke to [the review applicant].

23. The Tribunal spoke to [the review applicant] about s.359AA of the Act that states:

    359AA Information and invitation given orally by Tribunal while applicant appearing

    (1) If an applicant is appearing before the Tribunal because of an invitation under section 360:

    (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b) if the Tribunal does so—the Tribunal must:

    (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

24. The Tribunal put to [the review applicant] the admissions made by [Mr A] that:

    a.        he has been to Australia before;

    b.        he first came to Australia in August 2005;

    c.        he came to Australia on a work visa for a period of about 2–3 months;

    d. he did not return to Indonesia after 2–3 months but rather he stayed in Australia;

    e.he stayed in Australia unlawfully for about 7 years;

    f.he made an application for a protection visa when he was in Australia, which was refused by the delegate;

    g.he applied for review of the delegate’s decision at the Tribunal, but was unsuccessful in the review;

    h.he applied for Ministerial Intervention;

    i.he then voluntarily returned to Indonesia;

    j.he has not been harmed since his return to Indonesia and he does not fear anyone or anything in Indonesia.

25. The Tribunal explained to [the review applicant] that the admissions from her husband, [Mr A], may indicate that he has an intent to stay in Australia permanently and that the consequences of the Tribunal relying on the information from [Mr A] may be that the Tribunal may find that [Mr A] did not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted and therefore the Tribunal may affirm the decision under review. [The review applicant] then indicated that she did not want additional time to respond and wanted to respond without delay.

26. In her response, [the review applicant] indicated that her husband had made a big mistake in taking the actions that he took. [The review applicant] indicated that her husband, [Mr A], had previously been on a bridging visa but that she did not previously know that [Mr A] had previously applied for a protection visa.

27. The Tribunal then put to [the review applicant] that she had indicated that she had intended to stay permanently in Australia with [Son A] and her newborn baby, and that these circumstances may be a significant factor in [Mr A] and also her daughter, [the visa applicant], to want to stay in Australia. The Tribunal put to [the review applicant] that she had already admitted that she herself wanted her daughter, [the visa applicant], to want to stay in Australia.

28. In response, [the review applicant] said that she firstly wanted her son, [Son A], to start school in Indonesia and then come to Australia. [The review applicant] said that the pandemic had changed circumstances and that she wanted her son, [Son A], to continue with his schooling in Australia and also that her son, [Son A], would be able to see his grandparents in South Australia. [The review applicant] said that she decided it would be safer for her to be in Australia for reasons due to COVID-19. [She] said that her husband, [Mr A], would return to Indonesia because he had a house, dogs and a business in Indonesia. [The review applicant] said that [Mr A’s] parents had both passed away, and he had a young sister in [Country 1] and an older brother in Bali.

29. [The review applicant] expressed concern that it had been about 7 months since she had seen her daughter, [the visa applicant]. [The review applicant] expressed concern that it would be difficult in her circumstances for her to go and visit her husband and daughter in Indonesia. [She] indicated that her husband and her daughter had a right to come to visit her and that she, [the review applicant], had a right to have her husband and her daughter come to Australia to visit her.

30. [The review applicant] indicated that there were no other issues that the Tribunal should discuss with her that the Tribunal had not discussed with her.

    Analysis and findings

31. The Tribunal has carefully considered the evidence made available to the Tribunal. The Tribunal accepts that [Mr A] made representations on behalf of his daughter, [the visa applicant].

32. The Tribunal has significant concerns about the past form of [Mr A’s] visa history and whether [Mr A] genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

33. The Tribunal accepts [Mr A’s] admissions that:

    a.        he has been to Australia before;

    b.        he first came to Australia in August 2005;

    c.        he came to Australia on a work visa for a period of about 2–3 months;

    d. he did not return to Indonesia after 2–3 months but rather he stayed in Australia;

    e.he stayed in Australia unlawfully for about 7 years;

    f.he made an application for a protection visa when he was in Australia, which was refused by the delegate;

    g.he applied for review of the delegate’s decision at the Tribunal, but was unsuccessful in the review;

    h.he applied for Ministerial Intervention;

    i.he then voluntarily returned to Indonesia;

    j.he has not been harmed since his return to Indonesia and he does not fear anyone or anything in Indonesia.

34. The Tribunal places high weight on the findings at paragraph 32 about [Mr A’s] admissions about his visa history.

35. The Tribunal finds that [the review applicant] intends to stay in Australia permanently with her children, including her son, [Son A], and her newborn baby, and places high weight on this finding.

36. The Tribunal finds that [the review applicant] wants her daughter, [the visa applicant], to also ultimately stay with her in Australia permanently and places high weight on this finding.

37. The Tribunal finds that [Mr A] has a demonstrated history of his intent to stay in Australia permanently and places high weight on this finding.

38. The Tribunal accepts that [Mr A] has a property, dogs and a small business in Indonesia but places low weight on this finding.

39. The Tribunal accepts that [Mr A’s] parents have both passed away, and he had a young sister in [Country 1] and an older brother in Bali, but places low weight on this finding.

40. The Tribunal accepts that [the review applicant] decided it would be safer for her to be in Australia for reasons due to COVID-19 but places medium weight on this finding.

41. In balancing and giving significant consideration to the above findings, the Tribunal finds that [Mr A’s] demonstrated visa history strongly indicates that he has a demonstrated intent to stay in Australia permanently and not abide by the conditions of his visa, including condition 8531 – must not remain in Australia after end of permitted stay.

42. The Tribunal finds that while [Mr A] may have a property, dogs and a small business in Indonesia as factors that may act as an incentive for [Mr A] to desire to return to Indonesia, the Tribunal does not accept that [Mr A’s] property, dogs and a small business in Indonesia will outweigh the factors that may act as an incentive for him to stay in Australia, including that [the review applicant] and her son, [Son A], and her newborn baby are here in Australia permanently and also that [the review applicant] ultimately wants her daughter, [the visa applicant], to stay in Australia permanently. The Tribunal also does not accept that [Mr A’s] remaining brother in Indonesia would act as a particularly significant factor for [Mr A] to desire to return to Indonesia.

43. The Tribunal finds that given [the review applicant’s] express intent for her daughter to ultimately stay with her in Australia permanently, combined with [Mr A’s] demonstrated visa history as indicated above, it is unlikely that [the visa applicant] will return to Indonesia if she travels to Australia on a visitor visa.  

44. For the above reasons, the Tribunal is not satisfied that the visa applicant, [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 not met.

    DECISION

45. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Joseph Lindsay
    Member