1831887 (Migration)

[2019] AATA 4200

1831887 (Migration) [2019] AATA 4200 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831887

MEMBER:Rachel Westaway

DATE:29 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 29 April 2019 at 4:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visiting family – intention to comply with visa conditions – compliance during previous visit – retired – no intention to work or study – incentives to return home – adult son in Zimbabwe – proposed length of stay – financial ties to home country – travel history – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211; Schedule 8, Conditions 8101, 8201, 8503, 8531

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 19 October 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 18 September 2018. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl.600.211 because they were not satisfied that the applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether they have complied substantially with conditions on previous visas, their intentions to comply with conditions and other relevant matters.

5. The review applicant appeared before the Tribunal on 29 April 2019 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. In the present case, the visa applicants seek the visas for the purposes of visiting 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 Tribunal received oral evidence for the review applicant who is the biological son of [the first-named visa applicant] and [the second-named visa applicant]. Movement records before the Tribunal indicate that the two applicant have previously visited Australia [around] September 2015 and departed [in] November 2015. The review applicant confirmed their visit and stated that they left the country of their own accord and did not breach any conditions on their visas. There is nothing before the Tribunal to indicate that the applicants did not comply with conditions on their previous visa. The Tribunal finds that on the information before it that the visa applicants complied with conditions on their previous visitor visas.

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 Tribunal has reviewed the submissions made to the Tribunal pertaining to the visa applicants and their intention to comply with those conditions. The applicants are retired and are aged in their [age]. Given their ages and previous immigration history and compliance with conditions, there is nothing to suggest that the applicants would seek to work or study in Australia.

13. The Tribunal notes that the review applicant came to Australia on a student visa and he received a permanent visa through the refugee process. The review applicant’s wife is a citizen and also received her visa through this process. The applicant stated and the Tribunal confirmed through movement records that the applicant’s parents have departed Australia after their previous visit and did not attempt to apply for another visa.

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

15. Prior to the hearing the review applicant supplied the following information in a submission:

16. In a written submission he explained that it has been four years since he has seen his parents and he had one child the last time he saw them. He explained that he has two children now and his wife is pregnant with twins and is due to give [birth].

17. He explained that the length of the visit was flexible but it was due to the fact that they needed help with the children and particularly when his wife gives birth to the twins.

18. He explained that his mother in law is from Zimbabwe originally but is a [Country 1] citizen and comes to Australia to visit them every year for a week. He explained she has never breached a condition on her visa. He stated she is unable to assist as she still works and does not have annual leave to come for longer periods.

19. He explained that he has siblings who live [Country 2] and his parents have travelled there and never breached conditions, he stated that they have travelled to [Country 1] have not breached conditions on their visas there. He also explained as further evidence of ties to Zimbabwe the visa applicants care for three grandchildren who live with them. These grandchildren whilst older, namely [age], [age] and [age] are all dependents and are at university. They will remain in the house but will be checked on by relatives. They are dependents on the visa applicants because their parents’ have passed away.

20. The submission also included evidence of five properties owned and managed by the visa applicants. He explained that they live in one and the rent from the other four provides an income for them. The visa applicants also own three cars and evidence of ownership was provided for these.

21. The Tribunal notes that the review applicant provided evidence of a retirement letter for the applicant’s father, life insurance, national social security membership and details of employee benefits.

22. The Tribunal received the following supporting oral evidence:

23. The visa applicant stated that he is the son of the two visa applicants.  He is [age] years of age. He has lived in Australia since 2008. He came on a student visa and obtained a protection visa. He confirmed he has not been back to Zimbabwe since he arrived in Australia. He explained that [his wife] is an Australian citizen and is also from Zimbabwe. She has been in Australia for a similar period of time. They were together when he came to Australia. They received their visas after a review at the Refugee Review Tribunal.

24. The applicant’s parents have been to Australia before in 2014 for three months. They stayed with the applicant and his wife. They returned of their own free will. They did not apply for an extension of their visa. They did not breach any conditions on their last held visa.

25. The review applicant’s mother in law comes to Australia every year and has not breached conditions on her visa. She was originally from Zimbabwe and now has citizenship in [Country 1]. She stays with the review applicant and his wife for approximately one week.

26. He has had no other family members come and visit him. He has a brother in [Country 1] and sister in [Country 2] and a half-brother in Zimbabwe.

27. The purpose of the visa applicant’s trip was to come and help out with the children and bond with the grandchildren and learn and educate the children [Child A] and [Child B]. They have built a house which the review applicant stated he would like to show his parents and celebrate the children’s birthday. The two boys are aged [age] and [age].

28. He confirmed details from his written submission pertaining to his late brother and sister’s children who the visa applicant’s support. He explained that he and his wife are expecting twins and have no family and friends to assist them. He said that he is an [Occupation 1] and his wife is a [Occupation 2]. He said he is unable to take the children to day-care or kindy as he starts work early and when the twins come his wife will be having a Caesarean and will not be able to drive.

29. He said that his mother-in-law still works so she can’t come and assist for as long as his parents can.

30. The applicant provided a copy of the delegate’s decision when applying to the Administrative Appeals Tribunal for review of the decision. The delegate placed limited weight on the fact that the visa applicants have an adult son in Zimbabwe which the delegate outlined limited their incentive to return because their son was not dependant on them. The length of stay requested, namely twelve months was also deemed to be of concern to the delegate.

31. The applicants provided no evidence regarding their employment status which therefore provided no support to demonstrate how they would support themselves financially in Australia nor did they outline their employment commitments in Zimbabwe.

32. The applicants did not provide evidence of assets in their own country which would act as an incentive to return or assist in demonstrating their financial ties to Zimbabwe or how they would find their proposed holiday for twelve months.

33. The Tribunal notes that the applicant’s family have offered support and guarantees however the fact that the application was not accompanied by sufficient evidence limited the  delegate in what was available to them to indicate that the applicants intended a genuine, temporary visit.

34. The Tribunal has considered the evidence before and notes that only a very limited amount of material was supplied to the delegate.

35. The Tribunal has considered the assets and financial plans put in place for the applicants in their own country as well as the review applicant’s bank statements and finds that the applicants have sufficient assets along with their son’s financial situation to indicate they have the financial means to leave Zimbabwe and support a stay in Australia for twelve months if required. The Tribunal finds that the applicants based on the applicants’ ages and their previous immigration history and stage of their lives that they would be unlikely to want to work or study in Australia.

36. The Tribunal notes that the review applicant and his wife have previously sought protection, however there is nothing before the Tribunal to indicate that the applicants seek to remain in Australia or any other country based on their previous travel history or that they would seek to apply for another visa. The applicants have previously departed Australia within the required time period.

37. Given the information above, the Tribunal finds that the visa applicants intend to comply with the conditions to which the Subclass 600 visa would be subject, namely 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 and 8531 – must not remain in Australia after end of permitted stay.

38. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

39. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Rachel Westaway
    Senior Member