1833709 (Migration)

[2021] AATA 1956

1833709 (Migration) [2021] AATA 1956 (8 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833709

MEMBER:Moira Brophy

DATE:8 April 2021

PLACE OF DECISION:  Sydney

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 08 April 2021 at 1:41pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 – genuine temporary entrant – applicant not seen sponsor for seven years – caring responsibilities in home country – ability to finance visit – strong incentives to return – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.611

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 Home Affairs on 21 September 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 25 August 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 (Cth) (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 applicant genuinely intends to stay temporarily in Australia.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant [appeared] before the Tribunal on 1 March 2021 by way of telephone to give evidence and present arguments. The Tribunal also received oral evidence from the visa [applicant]. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

8. The visa applicant [is] a citizen of Columbia who was born [date]. She resides in Columbia.  Her only son resides in Australia. She has never been to Australia. In her application for a Visitor visa, she stated that she is retired. She wishes to travel to Australia for a period of up to three months.

9. The review applicant [is] the son of the visa applicant. He is an Australian citizen. He arrived in Australia [in] February 2014 on a Student (subclass 570) visa. He successfully applied for and was granted a Protection visa on 27 April 2017. He applied for and was granted Australian citizenship. He is married and he sponsored his partner to Australia. He has one child from a previous relationship who resides in Columbia and his mother is a guardian of the child.

   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 purpose of visiting her son and his wife. This is a purpose for which a visa in the Sponsored Family Stream may be granted.

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. At the time of hearing the visa applicant told the Tribunal that she had not previously travelled to Australia. She travelled to USA with her sister and her aunt on a tour. She stayed for 12 days and had complied with her visa conditions. The only other member of her family to visit Australia was her brother.

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) OR (3) OR (4)]):

    ·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. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given by the review applicant as to why the visa applicant was seeking to come to Australia to visit her family. The review applicant said he had not seen his mother for seven. She had not met his wife. His mother is not in paid employment. She is in receipt of a government pension and she has savings.  The review applicant considered it would be a good time for his mother to travel and spend time with him and his wife in Australia. The review applicant is in full time [employment]. He would be able to take some time off and show his mother around.   The Tribunal accepts it is the intention of the visa applicant to visit her son. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

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

17. The concern for the Tribunal was, as it was for the delegate, whether there was a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal especially considered the incentives for the applicant to return to Columbia at the end of her visit.

18. The Tribunal considered the evidence of the visa applicant as to why she had applied for a visitor visa. She told the Tribunal that she wanted to spend time with her son and to see where he lives. Given her son had been in Australia for seven years and during that time he had married the Tribunal accepts that is a valid and understandable wish. Equally the Tribunal accepts the evidence of the review applicant that he wanted to be able to show his mother his new life and have her spend time with and get to know his wife. The review applicant stated as someone who had been granted a Protection visa it was difficult for him logistically to travel to Columbia.

19. The Tribunal carefully considered the evidence of the review applicant as to how the proposed trip would be funded. The review applicant gave evidence he was in paid employment [earning] $1200 per week. His wife was in part time employment [earning] around $900 per fortnight. The review applicant said he had accumulated savings of $4000. His savings had been significantly higher, but he had recently had very high veterinary bills as his dog had broken his leg. The review applicant said the cost of the trip would not be an issue as he was prepared to pay from his savings and the visa applicant had the resources to meet her own costs. The evidence of the visa applicant as to what financial resources she had available to her was limited but she told the Tribunal she had income from her pension and she savings. She described herself as comfortable.

20. The review applicant gave evidence that the visa applicant wants to come to Australia for three months. The visa applicant told the Tribunal that she would stay for three months at the longest.

21. The Tribunal asked the review applicant what incentives the visa applicant has to return to Columbia at the end of her permitted stay in Australia.

22. The review applicant responded that her incentives to return are her family. She has her brother living with her and she is his carer. He suffers from anxiety and alcohol abuse issues. She has six siblings. She enjoys close contact with her siblings and sees them most days. She is also guardian for her only grandchild, the son of the review applicant who is aged [age]. She sees him each week and cares for him during school holidays. She represents her son in dealing with her grandson’s school. There is only the review applicant and his wife in Australia. The balance of her family is in Columbia. When asked what would happen if she comes here, changes her mind and does not want to return to Columbia, she responded that she loves her family there and she has her home there. She said that would draw her back.

23. The Tribunal has considered the evidence given by the review applicant. He and his wife are in a country without family support. The review applicant naturally wants his mother to get to know his wife. The review applicant stated that the visa applicant is law abiding and that all the members of the review applicant's family are also law abiding. The review applicant said it was important his mother was able to come and visit him and he understood that could only happen if she complied with the conditions of any visa she was granted.

24. The Tribunal put to the review applicant that considering his immigration history, in coming to Australia on a temporary visa and then seeking to change his status once onshore, there may be legitimate concerns that this was not a person who intended a genuine short stay. The Tribunal discussed with the review applicant the concerns of the Tribunal that this was really an application to obtain a migration outcome that allowed his mother to be together with him in Australia. The review applicant stated the visa applicant would return home because of her family, her caring responsibilities to her brother and grandson and her home.

25. The Tribunal has considered other relevant matters. The review applicant stated that if the Department requires a security bond, he was prepared to lodge a bond of $5,000. He stated that he is confident that his mother will return to Columbia at the end of her visit.

Findings

1. Having considered all the evidence, the Tribunal is of the view that the visa applicant is a credible witness. There was no dispute the visa applicant had not seen her son, the review applicant for seven years and she had not met his wife. The balance of his mother’s family, being her six siblings and her only grandchild are in Columbia. She has caring responsibilities to her brother and grandson. The Tribunal accepts that the visa applicant has a strong commitment to her family and her home in Columbia and that this would provide a strong incentive for her to return to Columbia. The Tribunal accepts that she has the financial resources to pay for her trip to Australia. The Tribunal accepts that she does not intend to work, study or undertake any training in Australia. The Tribunal places considerable weight on the fact that she has only applied to visit in the context of her not having seen her son for seven years and not having met his wife.

2. The Tribunal accepts that the review applicant will provide the visa applicant with accommodation and food. The Tribunal accepts that it is important to the review applicant that his family members are able to visit him in Australia and that he and his wife have the opportunity to spend time with family. The review applicant will ensure that the visa applicant complies with the conditions of her visa so as not to jeopardize other family members' prospects of obtaining Visitor visas in the future. The Tribunal is of the view that this would also provide a further incentive for the visa applicant to comply with the conditions of her visa.

3. The Tribunal accepts that the visa applicant's incentives to return to Columbia outweigh her incentives to remain in Australia after the end of her permitted stay. The Tribunal accepts that she intends complying with the conditions of his visa.

4. 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

5. 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.

   Moira Brophy
   Member