1900419 (Migration)

[2020] AATA 5473

1900419 (Migration) [2020] AATA 5473 (14 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1900419

MEMBER:Luke Hardy

DATE:14 September 2020

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 14 September 2020 at 3:52pm

CATCHWORDS         

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – sponsor’s wedding, postponed pending review of refusal, to be rescheduled if visa granted and when COVID-19 travel restrictions lifted – applicant’s husband’s medical conditions and treatment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 4.23; Schedule 2, cl 600.211

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 10 December 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 2 November 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, the delegate finding that the visa applicant did not intend genuinely to visit Australia temporarily.

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 applicants. 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] is an Australian citizen. She appeared before the Tribunal on 10 September 2020 to give evidence and present arguments. Her husband, [Mr A], also attended as a witness. The Tribunal hearing was conducted without need of an interpreter, although one was standing by via telephone. The applicants’ adviser was also present via telephone.

7. For the purposes of this review, [the review applicant] submitted a copy of the delegate’s decision which contains a summary of supporting material along with issues raised and concerns on which the delegate made findings.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted 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 attending her daughter’s wedding ceremony. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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. The visa applicant has never been granted a visa for Australia in the past, and so she cannot be regarded as having failed to comply with any. She has twice been refused a visa but that does not mean that she has ever not complied with one. She therefore does not fail to meet 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. As to the present case, [the review applicant] originally applied for visitor visas for both her parents to attend the ceremony for her marriage to [Mr A] in Sydney which was originally booked to take place in Sydney [in] January 2019. The application, lodged on 3 October 2018, was refused on 7 October 2018. A subsequent application, which I am told was supposed only to include [the visa applicant] but, perhaps through some drafting error, still referring to her husband as “travelling companion”, amongst other more understandably repeated information, was lodged on 2 November 2018 and refused on 10 December 2018. The review applicant sought fast tracked review but was found not to meet regulation 4.23 because the “event” being the wedding ceremony was considered to have “passed.”

15. The fact is, however, that [the review applicant] and [Mr A] postponed the wedding ceremony pending review of the second refusal. Meanwhile, it has taken nearly two years for the review to come up.

16. [The visa applicant] is married to [the review applicant]’s father and lives in [City 1]. They have a currently-unmarried son, [Mr B], who lives with them. He is [an Occupation 1] who has just completed a [vocational course].

17. At the time of the primary application in this instance, [the review applicant] was a primary carer to her aging father who had Alzheimer’s disease. She cited this link as a strong factor tying her to [Country 1] and motivating her to return there after a visit to Sydney. [The review applicant] told me at the Tribunal, however, that her grandfather, [the visa applicant]’s father, has since died.

18. [The review applicant] informed me that in the almost two years since the 2 November 2018 application, her father, [Mr C], has been diagnosed with a number of medical conditions that rule out international travel for the foreseeable future: he has [specified health] issues as well as a tumour in [specified area of body]. He requires chemotherapy and radiotherapy over the coming months as surgery is not advised. Evidence of this has been submitted along with evidence of financial capacity to support [the visa applicant] during a temporary visit, including evidence of [Mr A]’s income running [an Occupation 2] business.

19. [The review applicant] asks that [the visa applicant] be able to visit for a month and asserts that her mother would not want to be away from her father any longer.

20. [The review applicant] asserts that she and her mother are both in good health. She said her mother has no reason to seek protection in Australia or to try to change status here for any other reason. [The review applicant], who was granted residence in Australia upon grant of a protection visa, identifies as a Christian and, for this reason, planned and is still planning a secular wedding ceremony with [Mr A]. She and [Mr A] assert that they will re-schedule it as soon, they hope, as [the visa applicant] can be granted a visa and also as soon as Covid-19 travel restrictions are lifted to allow travel to Australia for such an event.

21. [The review applicant] indicated to me that her own status as  Christian has not affected her mother’s or her family’s circumstances in [Country 1]. Now an Australian citizen, she was able to visit her parents in [Country 1] in March 2019 without any potentially relevant incident.

22. On balance, I accept that [the visa applicant]’s husband is ill, that he is undergoing potentially life-saving treatment and that [the visa applicant] would only want to be away from him and their family and friends in [Country 1] temporarily. I am confident that [the review applicant] and [Mr A] can support her for a month here and that they would ensure that she departed Australia within the validity period of her visa.

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

24. On the evidence overall, I am satisfied that [the visa applicant] genuinely intends to comply with a visitor visa and has more incentive to return to [Country 1] than to stay on in Australia.

25. 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.

26. The Department of Home Affairs may wish to impose a security bond; that is not a matter for the Tribunal.

    DECISION

27. 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.

    Luke Hardy
    Member