2404498 (Migration)

[2024] AATA 3127

2404498 (Migration) [2024] AATA 3127 (12 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2404498

MEMBER:Margie Bourke

DATE:12 August 2024

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 12 August 2024 at 2:43pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – substantial compliance with last visa – intention to comply with visa conditions – other relevant matters – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 28 February 2024 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 10 February 2024. 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 visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, the nature of the review and the fact the visa applicant would be giving evidence from overseas in the hearing remotely by video or telephone. The Tribunal had regard to the assessment that this review be conducted with priority. The Tribunal is of the view that the conduct of the hearing by video would allow the review applicant to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The review did not involve an extensive amount of documents to be put to the review applicant during the conduct of the hearing. For all of the above reasons, the Tribunal invited the review applicant to attend a hearing to be conducted by video.

6. The review applicant consented to a shortened notification period in relation to the hearing.

7. The Tribunal assessed the review applicant was a vulnerable person, and was treated accordingly during the conduct of the hearing.

8. The review applicant appeared before the Tribunal on 12 August 2024 by video to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who attended the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic ([Country 1]) and English languages.

9. The review applicant was represented in relation to the review. The representative is the review applicant’s cousin. At the Tribunal’s invitations the representative provided some of the answers to the Tribunal’s questions of the review applicant during the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. 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.

13. Cl.600.211(a): – 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. I am satisfied that the visa applicant came to Australia as the holder of a visitor visa in 2010 for just over four weeks. There is no evidence that the visa applicant did not comply substantially with the conditions of the visitor visa in 2010. I am satisfied this is the last substantive visa held by the visa applicant in Australia. I am satisfied that the visa applicant was aged [age] years in 2010.

14. As the visa applicant was a child at the only time he has been the holder of a substantive visa in Australia, and has not held an Australian visa for nearly 14 years, I give the evidence that the visa applicant complied substantially with the conditions of the last substantive visa held, limited weight in my assessment of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visitor visa is granted.

15. Cl.600.211(b): – The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. 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.

16. I am satisfied that the visa applicant intends to come to Australia to provide support and be by the side of the review applicant, who is his older sister. I am satisfied that the review applicant has faced significant mental health issues in recent times, including being hospitalised. I am satisfied that the review applicant’s and the visa applicant’s mother recently travelled to Australia as the holder of a visitor visa to provide support to the review applicant, returning to [Country 1] earlier in 2024. I am satisfied that the family are very concerned about the review applicant and wish to provide support and assist her in her recovery from her current health issues. I am satisfied that the review applicant’s husband also seeks the support of the review applicant’s family in providing care for his wife.

17. I am satisfied that the visa applicant has employment and business and property commitments in [Country 1]. I am satisfied the visa applicant is the youngest sibling in the family, and supports his parents in [Country 1]. I am satisfied that the visa applicant has family, employment and business commitments in [Country 1] which he considers his responsibilities and his future.  I am satisfied that the commitments of the visa applicant to his family, employment and business outweighs any assessment of the economic crisis in [Country 1] in recent years, and the current violence and volatility in the Middle East currently impacting [Country 1].

18. I am satisfied the visa applicant does not intend to work or study or train in Australia, and intends only to provide support to his sister, whilst in Australia as the holder of a visitor visa. I am satisfied the visa applicant does not intend to apply for another visa or an extension of the visa whilst in Australia as the holder of a visitor visa.

19. I am satisfied the visa applicant intends to return to [Country 1] before the expiration of the visa. I am satisfied that the visa applicant intends to comply with the conditions to which the visa would be subject. I give this weight in favour of an assessment that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visitor to visa would be granted.

20. Cl.600.211(c): – The Tribunal has also considered all other relevant matters. I am satisfied that both the review applicant and the visa applicant, and the review applicant’s representative (her cousin), are aware that if the visa applicant does not comply with the conditions to which the visitor visa will be subject, the likelihood of the review applicant being able to successfully sponsor other members of her family to come and visit her and provide support are substantially reduced. The visa applicant and the review applicant are aware of the review applicant’s wish that her mother be able to return and stay with her and care for her for periods of time in the future.

21. I am satisfied that the review applicant has been diagnosed and is being treated for a significant mental health condition. I am satisfied that this is the overriding concern of her family members, including the review applicant, her brother the visa applicant and her mother, and her cousin the representative.

22. The review applicant and her representative advised the Tribunal that her sister had previously come to Australia on a visitor visa with her youngest son to provide support to the review applicant. The sister had applied for a waiver of condition 8503 (no further stay) and applied for an extension of her visa due to the seriousness of the review applicant’s condition. Subsequently the review applicant’s sister and the sister’s husband were granted student visas, as guardians of their student children, and are currently residing in Australia. The review applicant and the visa applicant gave evidence that the visa applicant would not seek to remain in Australia after the expiration of his visitor visa, would not seek to extend his visitor visa, and would not make an application for a visa whilst in Australia is the holder of a visitor visa. I accept this evidence of the review applicant and the visa applicant.

23. The review applicant and a representative confirmed that if required a security bond could be provided to confirm the visa applicant would comply with the conditions to which the visa would be subject.

24. I give weight to the evidence of all other relevant matters in favour of my assessment that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of a family visit.

25. Conclusion: – 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

26. 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
    Senior Member