Afamasaga (Migration)

[2021] AATA 1710

Afamasaga (Migration) [2021] AATA 1710 (28 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Folototo Afamasaga

VISA APPLICANT:  Mr Seuinuutasi Afamasaga

CASE NUMBER:  1904752

HOME AFFAIRS REFERENCE(S):          CLF2019/18507 IRIS 16220056601

MEMBER:Wendy Banfield

DATE:28 May 2021

PLACE OF DECISION:  Canberra

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 28 May 2021 at 1:09pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – one previous overstay in a third country – compliance with conditions – consequences of non-compliance for applicant’s future visits and sponsor’s future sponsorships of other family members – church and community leadership and most of family in home country – decision under review remitted

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

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 27 February 2019 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 11 February 2019. 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 they were not satisfied the applicant demonstrated he genuinely intends to stay temporarily in Australia.

5. The review applicant (sponsor) appeared before the Tribunal on 24 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Afamasaga, the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages.

6. Prior to the hearing the following evidence was submitted in support of the application:

   ·     Department’s decision record dated 27 February 2019

   ·     Letter of support from the sponsor dated 18 March 2019

   ·     Visa applicant’s written submission dated 24 March 2019

7. The Tribunal also considered evidence submitted to the Department at the time of application.

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 visiting his wife and family members. This is a purpose for which a visa in the Tourist 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 applicant provided information in his written submissions and at the Tribunal hearing about a previous overstay in New Zealand and the circumstances that led to it. The explanation was that the applicant, through the assistance of a then partner, had applied to extend his stay in the country but it was not granted, and the applicant remained without the right to do so. According to his evidence, he departed voluntarily when he was notified.

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. The Tribunal weighed the evidence overall in this case to assess the visa applicant’s genuine intention to stay temporarily in Australia for the purpose for which the visa is granted and whether the visa applicant will abide by key conditions that would be imposed. There is no evidence before the Tribunal to indicate the visa applicant would seek to engage in work, study or training that would breach conditions 8101 or 8201. The visa applicant is a head elder in his church in his home country and will have the support of the sponsor in Australia. The review applicant and visa applicant indicated they understood the prohibition against working while holding a Visitor visa in Australia.

15. Condition 8503 refers to entitlement and is not a condition that involves compliance. There is no evidence to indicate the visa applicant would apply for protection in Australia. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

16. The visa applicant is a married man aged 59 who lives in Samoa and according to the evidence provided, is an elder in his local church and a community leader. He has two adult sons and their families in Samoa and a son in Australia. His spouse, the sponsor in this case, is the visa applicant’s current wife. The sponsor lives in Perth and is employed with a cleaning company in a fly in fly out arrangement in the mines in Western Australia. The sponsor had undertaken to support the visa applicant during a visit to Australia and provide for him as the visa applicant is retired. The applicant declared he has not lived outside of his home country in the last five years. The applicant has visited Australia twice in the past, in 2007/08 and 2008/09. The sponsor has travelled regularly between Australia and Samoa until border closures in 2020. She last returned to Samoa in March 2019. The visa applicant claims he wishes to visit Australia to spend time with his wife, his adult son, and his stepchildren.

17. The Tribunal weighed the evidence in this case and on balance, is satisfied the visa applicant intends to comply with conditions attached to a Visitor visa. The review applicant explained it has been a struggle for her to travel to Samoa and she wants her husband to spend time with her. Both applicants indicated they understand the consequences of non-compliance with visa conditions, that being the likelihood the applicant would be unable to visit again if he overstays in Australia or does not abide by visa conditions. It would also be difficult for the applicant’s spouse to sponsor other family members in future if the applicant does not comply. The Tribunal considered the visa applicant’s previous overstay in New Zealand and the Departments finding that the applicant “previously breached visa conditions and/or sought to extend your stay in Australia, this was subsequently refused and you departed Australia.” The Tribunal does not have details about the applicant seeking to extend his stay in Australia but is satisfied he understands the requirements if granted a Visitor visa. Since the applicant has not been onshore in Australia since 2009, the Tribunal considers he should be given the opportunity to visit his wife and relatives, and establish a compliant travel history.

18. 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

19. 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.

    Wendy Banfield
    Member