2209121 (Migration)

[2022] AATA 4385

2209121 (Migration) [2022] AATA 4385 (6 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2209121

MEMBER:Melissa McAdam

DATE:6 October 2022

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 06 October 2022 at 12:02pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – past compliance with visa conditions – intention to comply with visa conditions – sufficient funds to support stay – short-term support for sister – good immigration record – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 Home Affairs on 15 June 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 4 May 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 visa applicant had not provided evidence her income in Thailand was significant.  The delegate therefore found there was insufficient incentive for the visa applicant to return to Thailand.

5. The review applicant was represented in relation to the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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 visiting her sister in Australia.  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)).

10. The visa applicant has held three Visitor visas in the past five years. According to the department’s movement records, she first arrived in Australia [in] December 2017 on a three month Visitor visa.  While in Australia she was granted a second Visitor visa.  She departed Australia before that visa expired.  She was granted a third multiple entry Visitor visa in January 2019.  She used this to visit Australia several times and her last departure was before the expiry of the visa.  There is no evidence before the Tribunal that she has breached any of her visa conditions in Australia.

11. The Tribunal therefore finds that the visa applicant has substantially complied with the conditions of her previously held visas. It gives this factor significant weight in the visa applicant’s favour.

12. 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.

13. The applicants have submitted that the visa applicant will be accommodated and supported by the review applicant while in Australia. The review applicant has submitted her bank statements showing that she has sufficient funds to support the visa applicant during a short stay in Australia. There is no indication before the Tribunal that the visa applicant intends or needs to work while in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8101.

14. There is no indication before the Tribunal that the visa applicant intends or needs to study while in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

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

16. The review applicant is the visa applicant’s sister. She is an Australian citizen, living in Sydney with her two sons.  With the visa application the applicants provided medical reports that the review applicant is being treated for [a medical condition] in Australia and requires the visa applicant’s short-term support here.  

17. With the review application the review applicant submitted a letter to the Tribunal which outlined the following:

    Her sister, the visa applicant, has travelled to Australia multiple times without issue. She always entered and departed within the permitted dates. 

    Her sister has never been involved in any misconduct in Australia.

    The review applicant wants her sister to spend time with her here as the review applicant has recently [undergone specified medical treatment].  She will be gaining strength so that she and her sister can travel back to Thailand together after her sister’s three month stay.

18. On 8 September 2022 the review applicant provided the following further information:

    I had been diagnosed with [Medical Condition 1] 9 months ago and since then had gone through many [medical procedures] and [treatment], which … now I am on continues treatment taken [Medication 1] everyday and have to take for two years. Therefore during I am taken this medication which is make me having fever, shortness of breath, feeling very tried and weakness. [Details of Medication 1 redacted.] As a result of these medical procedures, my health has taken a significant dive. I am a single mom with two adult sons and with no partner.  During this period my two sons had been most patient and helpful in taking care of me. However there are many situations in my current health condition that I need a woman's help. My sister [the visa applicant] whom I applied for her visa is dearest and closest to me. She has been to Australia to visit me a few times and she is most needed now. I sincerely believe that my sister presence would be most beneficial to my health. She would be a most suitable female companion and certainly a great morale supporter in these trying times of mine. Moreover my sister would be able to help me with task at home and cook me transitional home Thai cooking which I long for. And also another thing, atter having been tortured with sickness for so long, I have a dream, I dream that when my health improved, my sister would be able to accompany me back to Thailand to visit my ageing mom and other siblings when her visa expires.

    I respectfully attached two letters from my family doctor [Dr A] and [specialist] team of [Dr B] regarding my health for your perusal. …

19. The review applicant attached medical documents from her treating doctors, which outline her health condition and give support to her application for her sister to come to Australia to provide required short-term assistance to her.

20. The Tribunal accepts that the visa applicant is from Thailand where she works in various jobs for a modest income. There is no indication that the visa applicant has any particular financial struggles in Thailand or that she is unable to adequately support herself there. There is also no indication that she has any difficulties in Thailand that would motivate her to remain in Australia after her visa expires.

21. The Tribunal accepts that the visa applicant wishes to come to Australia to help her sister during her recovery here, and then accompany her back to Thailand so her sister can visit close family there.

22. The Tribunal accepts the visa applicant’s mother and other siblings are in Thailand, as well as most of her extended family.  The Tribunal considers that the presence of these close family members in Thailand is substantial inducement for the visa applicant to return there, and particularly to help the review applicant also travel there when she sufficiently regains her strength.

23. The information before the Tribunal indicates that the review applicant and the visa applicant have good immigration histories in Australia. The Tribunal gives substantial weight to this factor. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to her family and relatives’ immigration compliance in Australia.  The Tribunal considers this motivation for the family to ensure the visa applicant complies with her visa conditions and departs before her Visitor visa expires.

24. The Tribunal notes the review applicant has other close family in Thailand who she would likely wish to visit Australia in the future. The Tribunal considers this further motivation for her to ensure the visa applicant does not breach any of her visa conditions and that she departs Australia before the expiry of her visa. 

25. The Tribunal also notes the strong compassionate and compelling reason for the visa applicant’s visit to Australia at a time when the review applicant needs some short-term support in her recovery.

26. 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

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.

    Melissa McAdam
    Member