1833071 (Migration)

[2020] AATA 2157

1833071 (Migration) [2020] AATA 2157 (27 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833071

MEMBER:Margie Bourke

DATE:27 February 2020

PLACE OF DECISION:  Melbourne

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 27 February 2020 at 10:32am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – compliant visits to other countries – family employment – family composition in home country – support for review applicant’s family – decision under review remitted        

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 4 September 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 30 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. 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 intends to genuinely stay temporarily in Australia.

5. The tribunal has considered the matters in the Department decision record dated 4 September 2018, a copy of which was provided to the tribunal by the review applicant. The tribunal has considered extensive material and submissions provided to the tribunal by the review applicant. Pursuant to s.360(2) of the Act, I have determined I can make a decision favourable to the visa applicant based on the information available to the tribunal, without proceeding to a hearing.

6. The review applicant was invited to a hearing, but that hearing was cancelled due to the unavailability of the interpreter. Subsequently the review applicant provided further information to the tribunal, which satisfied the tribunal that it could make the decision based on the information available to it.

7. The review applicant was represented in relation to the review by her registered migration agent.

8. The following are the written reasons that the Tribunal has concluded that the matter should be remitted to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

    Cl.600.211(a)

11. 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)).

12. There is no evidence before the tribunal that the visa applicant has previously been the holder of an Australian substantive or bridging visa.  there is no evidence of compliance or non-compliance by the visa applicant with an Australian held visa.

13. I accept based on the evidence in the visa applicant’s passport and other written material that the visa applicant has travelled from [Country 1] to [four named countries]. There is no evidence that the visa applicant has not complied with her visa conditions on these travels.  The evidence is that the visa applicant has returned to [Country 2] and [Country 3], which indicates the visa applicant has complied with the terms of the visas.

    Cl.600.211(b)

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.600.612):

    ·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.

15. I am satisfied, based on the review applicant’s translated [Country 1] identity card, which records her mother’s name, that the review applicant is the visa applicant’s daughter. I am satisfied based on the identity documents and other certificates provided by the review applicant that the visa applicant is married, her husband is employed and they have a son attending university in [Country 1] who lives at home with his parents, and another son who is married with a child in [Country 1]. I accept the visa applicant and her husband have another son who resides in [Country 2].  I accept that the visa applicant is leaving her husband and sons and grandchild in [Country 1] while she comes to Australia to visit her daughter.

16. I accept that the visa applicant is retired and does not wish to work, study or train in Australia.  Based on the written information provided I am satisfied that the visa applicant owns property in [Country 1], and has sold one property to one of her sons.  I am satisfied based on the bank statements provided that the review applicant has funds to cover the costs of her mother’s intended stay.

17. I have considered that the Department was provided with a medical report confirming the review applicant was pregnant with her [number] child at the time of application. The tribunal was provided with a psychological report dated 19 August 2019 which advised the review applicant had been diagnosed with depression, extremely sever anxiety and severe stress. The report advised the review applicant had [number] children aged [specified ages], and her husband’s employment required him to be two days per week interstate. The report advocated that the review applicant’s mother could provide her with psychological support, and asked the tribunal to consider the review applicant’s mental health. I accept that the visa applicant intends to visit Australia to support her daughter, spend time with her [grandchildren], and to attempt to assist the review applicant overcome her current psychological illhealth.

18. I am satisfied based on the declaration in the application form and the subsequent submissions and written evidence, that the visa applicant intends to comply with the conditions to which the visa will be subject.  I am satisfied that the review applicant and visa applicant understand, based on the written material before me, that any breach of the visa conditions will impact the review applicant’s record as a sponsor with the Department, and her ability and that of her husband, to successfully apply to sponsor family members or relatives to visit her in the future.

    Cl.600.211(c)

19. The Tribunal has also considered all other relevant matters (cl.600.211(c)).In the decision record the delegate recorded that the prevailing political, security and economic conditions in [Country 1] constitute a strong disincentive for the visa applicant to return there. I have considered the DFAT Country Information Report [for Country 1] [dated in] 2018. I note this report advises [details of security situation summarised].

20. I have considered the personal information provided in relation to the visa applicant. I have considered the visa applicant’s husband [identity card] and his certificates of land ownership.  I have considered the evidence of the visa applicant’s pension and property ownership. I have considered the letter confirming the employment of one of the visa applicant’s sons, and the university identity card for the other son. I am satisfied that the visa applicant’s family in [Country 1] is not substantially impacted by the political and economic circumstances as described in the delegate’s decision record.  I am satisfied the visa applicant’s family ties in her home country are sufficient to accept that she genuinely intends to return before the expiration of her visa.

    Conclusions

21. For all the above reasons, I am satisfied that the visa applicant genuinely intends to temporarily visit Australia, to spend time with her grandchildren, and support her daughter,  and I am satisfied she intends to comply with the conditions to which the visa will be subject.

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.

    Margie Bourke
    Member