2204336 (Migration)

[2023] AATA 761

2204336 (Migration) [2023] AATA 761 (1 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2204336

MEMBER:Rachel Da Costa

DATE:1 March 2023

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 01 March 2023 at 1:55pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – close family relationships in home country – employment and education in Indonesia – financial arrangements for visit – periods of unlawful residence – impact on future family visits – offer to pay a security deposit – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 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 24 March 2022 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 7 March 2022. 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 Tourist 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 that the visa applicant genuinely intended to stay temporarily in Australia for the purpose of a family visit. The review applicant applied to the Tribunal for a review of that decision and provided a copy of the delegate’s decision to the Tribunal with her application for review.

5. The review applicant appeared before the Tribunal on 27 February 2023 to give evidence and present arguments by Microsoft Teams video. The Tribunal also received oral evidence via Microsoft Teams video from the visa applicant, [named], who is the review applicant’s son, and [Partner A], who is the review applicant’s de facto partner (partner). The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. [Partner A] did not require the assistance of the interpreter.

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 applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

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)). Movement records of the Department of Home Affairs indicate that the visa applicant has never visited Australia. He and the review applicant confirmed this in the Tribunal hearing. The migration histories of other members of the visa applicant’s family are referred to below in so far as they are relevant to the Tribunal’s decision.

10. 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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

11. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed proposed financial arrangements for his visit to Australia. The review applicant gave evidence that she works full-time for a catering company called [name] and she has been in this role for around one and a half years. Her annual salary before tax is $60,000. Her partner works in construction. He has been in his current role for about four and a half years and he earns $1700 per week before tax. They live in a rented two-bedroom apartment and pay $360 per week in rent. The review applicant’s youngest son lives with them. They have around $40,000 in savings and own a car. They have a loan for the car which costs $630 per month in repayments. They don’t have any other debts.

12. The review applicant gave evidence that the visa applicant will stay with her and her partner while he visits Australia. She said he can share the bedroom of his younger brother while he is here. The review applicant gave evidence that she and her partner will pay for the visa applicant’s airfares and meet his living expenses while he is in Australia. She said that the visa appilcant has some savings of around $4000 and he might bring around $2000 with him to spend. The review applicant gave evidence that the visa applicant lives in Pontianak, Kalimantan, Indonesia and that he lives in a house which the review applicant owns in her own name. The visa applicant lives with his older sister and sometimes the review applicant’s mother comes to stay with them. The review applicant and her ex-husband separated some years ago and the visa applicant still has a close relationship with his father.

13. The review applicant gave evidence that the visa applicant works as [an occupation 1] for a company called [Business 1], which is a bit like [a named business], and he earns money from that. He has been doing this type of work since he finished high school a couple of years ago. Because he lives in the house belonging to his mother it does not cost him anything, so he only needs to pay for his other expenses with his income. He has enrolled in a hospitality/hotel training course which he will start in June 2023. She has provided documents to support this. The course is a one year program which the review applicant is paying for. She explained that she can afford to pay for the visa applicant’s study in Indonesia but not in Australia, because that would be too expensive. The visa applicant does not have any debts. The review applicant gave evidence that the visa applicant is not planning to work in Australia because he does not have a working visa and she has been in Australia long enough to know not to make mistakes and breach visa conditions. He will not study in Australia as he is planning to start his study in Indonesia soon.

14. The visa applicant gave evidence that for the last three years he has worked as [an occupation 1] for a company called [Business 1]. He owns a motorcycle which he uses [for work]. In June 2023, he will start a hospitality course for one year at a hotel school. He said that maybe he could pay for his airfares to come to Australia because he has saved some money, which is around $7000. He is planning to bring enough money with him to Australia to do some sightseeing, but the most important thing is to see his parents. In Australia, he will stay with his mum and step-father and spend time with them and his siblings. He doesn’t have any debts. In Indonesia, he lives with his older sister in a house owned by his mother. He doesn’t see his father often even though he lives in the same city, but he speaks to him every day on the phone. He is not planning to work in Australia or to do any study.

15. The Tribunal has also considered all other relevant matters (cl 600.211(c)). As part of this, the Tribunal discussed the proposed length and purpose of the visa applicant’s visit to Australia and his personal circumstances. In his application for a visitor visa, the visa applicant stated that his proposed period of stay was up to three months. The reason for the visit was a family visit.

16. The review applicant gave evidence that she last saw the visa applicant in August 2022. She said that as soon as she acquired her Permanent Residence she booked a ticket and went to see him in Indonesia. Before this, she had not seen him for about 11 years.

17. In the Tribunal hearing, the Tribunal discussed with the review applicant her migration history and that of various family members.

18. The review applicant gave evidence that she has been an Australian Permanent Resident since 2022. She gave evidence that she travelled to Australia 12 years ago on a tourist visa. After that, she sought protection. Then she acquired a partner visa. She spent around three and a half years unlawfully in Australia. When she applied for her partner visa, she asked her migration agent to ‘cancel’ her protection visa application. She applied for protection because she came to Australia with her eldest daughter and she didn’t think it was safe for her daughter to return to Indonesia because she is a lesbian, so the review applicant applied for a protection visa in order to stay in Australia with her daughter.

19. The review applicant gave evidence that her eldest daughter came to Australia as a student. She became involved in a same-sex relationship and because of that she applied for, and was granted, a protection visa and now she is an Australian citizen. The review applicant gave evidence that as far as she knows, her daughter did not spend time in Australia unlawfully.

20. The review applicant gave evidence that her youngest son, who lives with her, was included in her partner visa application as a dependent and he now has Australian Permanent Residence which he acquired at the same time as his mother.

21. The review applicant gave evidence that her mother had recently visited Australia and stayed for two and a half months and has returned to Indonesia. Her ex-husband visited Australia 10 or 11 years ago and returned to Indonesia. Her other daughter visited Australia at the same time as the review applicant arrived. She returned to Indonesia and has not come to Australia again.

22. The Tribunal asked the review applicant to provide the names, dates of birth and passport details of any close family members who had visited Australia in the last 10 years so the Tribunal could verify their situation because it might be relevant to the visa applicant’s case. The review applicant provided this information after the hearing. Movement records of the Department of Home Affairs show that the review applicant has been honest about the travel history of her family members despite several of them, including her, not having complied with the conditions of their visas in the past.

23. The review applicant’s mother was granted a 3-year multiple entry visitor visa in August 2022 and visited Australia from November 2022 to February 2023 and returned to Indonesia in compliance with the conditions of her visa. The review applicant’s ex-husband was granted a visitor visa in September 2011 which ceased in December 2011. He travelled to Australia in September 2011 and returned to Indonesia in August 2012. The review applicant’s daughter who still lives in Indonesia was granted a visitor visa in August 2011 which ceased in September 2011. She arrived in Australia in August 2011 and departed in August 2014. Movement records also show that the applicant’s daughter who applied successfully for a protection visa spent some time in Australia unlawfully.

24. In the Tribunal hearing, the Tribunal put to the review applicant its concern that she and at least one other of her family members had spent time in Australia unlawfully without a visa and that this raised a concern about whether she and her family were people who respected Australia’s migration laws, and whether the visa applicant would comply with the conditions of his visa. The review applicant responded that she admits they made mistakes in the past and she will make sure her son does not make the same mistake. She said she does not want to create problems for her, or her partner, or her children. She said she is very proud to live in Australia. She loves it, and she loves the discipline of life here, and she wants to adhere to the rules and the law and she is keen that her son will not repeat their mistakes.

25. The Tribunal asked the review applicant about the visa applicant’s ethnicity and religion. She explained that he is of mixed race with his father being of Chinese ethnicity and the review applicant being of Javanese ethnicity. She gave evidence that they are not particularly religious people but their religion is Christian and her son goes to church sometimes but not often. The Tribunal asked the review applicant whether the visa applicant had ever experienced any harm or discrimination in Indonesia as a result of his ethnicity or religion. She said he had not as far as she knows, but conceded that he may not have told her if he had. When asked whether other family members had suffered harm for this reason she said her youngest son was teased at school sometimes because of his mixed blood but he never got into fights or suffered harm. The Tribunal asked the review applicant whether she knew of any problems the visa applicant was having in Indonesia and she said she did not. She confirmed he is in good health.

26. The Tribunal asked the review applicant what incentives the visa applicant has to return to Indonesia at the end of his visit. She said he has his education to start soon and they would not allow him to overstay because they don’t want him to breach his visa conditions. The Tribunal asked the review applicant what incentives the visa applicant has to remain in Australia at the end of his visit. She has he has none as far as she is concerned. She said if he gets a visitor visa he can come and visit when he wants to and then return to Indonesia.

27. The Tribunal asked the review applicant what would happen if the visa applicant comes to Australia and changes his mind about returning to Indonesia. She said they had not discussed it, but if the visa applicant did this, she would tell him they don’t have room to accommodate him. A short stay is ok, but they don’t have room for him to stay for a long time. Also, if he wanted to study in Australia that would be a problem because they don’t have the money to pay the fees, but they can afford to pay the fees for his study in Indonesia.

28. The partner of the review applicant, [Partner A], gave evidence that he was born in Australia and is an Australian citizen. He said that he has a close bond with the visa applicant, they speak often, and he would really love him to be able to visit Australia and see where they live and have a look around. He and the review applicant want the visa applicant to visit so he can share their life for a while. He also wants the visa applicant to understand what life is like in Australia in the sense that it is expensive and the visa applicant needs to see that and respect that. [Partner A] explained that in his view, in Indonesia young people respect what their parents say and adhere to that. When asked by the Tribunal what he would do if the visa applicant came to Australia and changed his mind and said he did not want to return to Indonesia, [Partner A] made it very clear that he would not allow that to happen. He said the visa applicant respects his parents (meaning him and his mother) and he will go back if they say he has to. He is confident the visa applicant will do the right thing because he is respectful, considerate and he is not selfish. The visa applicant knows that if he does the wrong thing, that will wreck things for other family members who want to visit and he would not do that to them. He will not overstay as far as [Partner A] is concerned.

29. The visa applicant gave evidence that he wants to come to Australia for around two months. He cannot stay longer because he has to return to Indonesia to start his studies. He gave evidence that on a day-to-day basis, he does his [work] and spends time with friends. He said he feels financially secure in Indonesia.

30. The Tribunal asked the visa applicant whether he had ever experienced harm or discrimination in Indonesia due to his ethnicity or religion. He gave evidence that his of mixed Chinese and Javanese ethnicity and he is not really religious but he is a Christian. He goes to church sometimes on Sundays but not if he is tired. He has not suffered any harm or discrimination in Indonesia because of his ethnicity or religion. He is not involved in politics. He is in good health.

31. The Tribunal asked the visa applicant what incentives he has to return to Indonesia at the end of his visit. He said he has been separated from his mother for around 12 years so he is keen to see her but he has to return to Indonesia because his studies start in June 2023. That is the main thing because he is registered for the course and has the obligation to do that. The Tribunal asked the visa applicant what incentives he has to remain in Australia at the end of his visit. He said there were none. The Tribunal asked the visa applicant what would happen if he comes to Australia and changes his mind about returning to Indonesia. He said that would not happen and he will return to Indonesia.

32. The Tribunal discussed with both the review applicant and the visa applicant the potential consequences for the applicant and possibly other family members if the applicant did not abide by the conditions of his visa. The review applicant and visa applicant both made it clear that they understood.

33. The review applicant explained that as a mother she would love to live in the same place as her son, but she is very grateful for having the privilege of Australian Permanent Residence and they can visit each other in Australia and Indonesia. She said she does not want her son to cause any problems and breach the conditions of his visa. She does not want him to repeat the mistakes they made in the past and it is his duty to return to Indonesia.

34. The review applicant and her partner offered to pay a security deposit in the order of at least $5000 if that would assist in securing the visa.

    Findings

35. Having considered all the evidence, the Tribunal finds the review applicant, her partner and the visa applicant to be credible witnesses and accepts their evidence. The Tribunal finds that the visa applicant’s stable living and financial situation in Indonesia, as well as his study commitments and presence of family and friends provide incentives for him to return there at the end of his permitted stay in Australia.

36. The Tribunal appreciates the honesty of the review applicant about the mistakes she and other family members made in the past in not complying with the conditions of their visas and her assurances that she does not wish to repeat those mistakes. The Tribunal is also reassured by the assurances the review applicant and her partner made about ensuring the visa applicant will comply with the conditions of his visa, as well as the explanations she and her partner gave about why the visa applicant cannot stay with them in Australia on a long-term basis. The Tribunal also places weight on the fact that the review applicant’s mother (the visa applicant’s grandmother) visited Australia quite recently and returned to Indonesia in compliance with the conditions of her visitor visa, as well as the fact that the visa applicant himself does not have a history of non-compliance with visa conditions. The Tribunal is satisfied that the visa applicant does not intend to come to Australia for the purpose of seeking permanent residence.

1. The Tribunal is satisfied that it is the visa applicant’s intention to visit the review applicant, her partner and his siblings in Australia and that he will not remain in Australia after the end of his permitted stay. The Tribunal is satisfied that he will comply with his visa conditions and the review applicant and her partner will ensure this is the case.

   Conclusion

2. 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

3. 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.

   Rachel Da Costa
   Member