Alam (Migration)

[2024] AATA 2863

Alam (Migration) [2024] AATA 2863 (1 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saiful Alam

REPRESENTATIVE:  Ms Alison Valerie Saunders

CASE NUMBER:  2304505

HOME AFFAIRS REFERENCE(S):          BCC2020/1348832

MEMBER:Louise Nicholls

DATE:1 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 01 August 2024 at 3:05pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – intention to work – recovering relationship with child – family violence orders and convictions – request for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant for the visa is a citizen of Bangladesh and is 31 years old. The applicant first arrived in Australia on 22 April 2011 as the holder of a student visa. He has held several student visas, a temporary work visa and several bridging visas since that date.

2. The visa applicant applied for a Visitor (Class FA) visa on 10 April 2020. He provided a copy of the biodata page of his Bangladeshi passport, his statement, two payslips and a copy of his Subclass 457 visa grant document.

3. 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. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

4. On 14 March 2023 a delegate of the Minister for Home Affairs refused to grant the visa applicant a Visitor (Class FA) visa under s. 65 of the Migration Act 1958 (Cth) (the Act).

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl. 600.211 of the Regulations. The delegate was not satisfied that the visa applicant had a genuine intention to stay temporarily in Australia for the stated purpose.

6. The review applicant sought review on 29 March 2023. He provided a statement and written submissions on his personal circumstances, documents relating to his hospitality and accounting studies, visa grant notices, his son’s NSW birth certificate, the biodata pages of his expired and current Bangladeshi passport, Bangladeshi marriage contract documents dated 15 January 2014, his resume, his employer’s statement dated 1 June 2023, a Australian Federal Police disclosable court outcome certificate dated 6 March 2023, court documents issued by the Local Court of NSW, a Skills Assessment, English language skills test results and an Expression of Interest for the Skill Select visa process.

7. The review applicant appeared before the Tribunal on 24 May 2024 to give evidence and present arguments. He was assisted by an interpreter in the Bengali and English languages although the applicant was able to easily converse in English.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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.

   Background

10. The applicant is a 31-year-old Bangladeshi citizen who first arrived in Australia on 22 April 2011 as the holder of a student visa. In his first few years in Australia he studied accounting while working part-time and on 15 January 2013 he married in Bangladesh. He returned to Australia and later went on to work and study in the hospitality industry. He and his wife had a son in 2017. In February 2021 the applicant’s marriage broke down and he was charged with domestic violence offences. He is currently separated from his wife and has not seen his son since 2021.

    Purpose and duration of visit

11. In the present case, the visa applicant seeks the visa for the purpose of remaining in Australia to work, to pursue other visa options and to recover his relationship with his son.  These are not purposes for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

12. In his statement of 23 May 2024 the applicant acknowledged that he does not have a genuine intention to remain in Australia as a visitor.

    Compliance with conditions of last substantive visa.

13. 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)).

14. There is no evidence of non-compliance with conditions of the last substantive visa held, or any subsequent bridging visas.

    Intention to comply with conditions.

15. 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.

16. The applicant admits that he has an intention to work and remain in Australia.

    Other relevant matters

17. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The applicant admits that he does not have a genuine intention to stay temporarily in Australia for the purpose of a visit. He is intending to make a request for Ministerial intervention pursuant to s.351 of the Act.

    Conclusion

18. The Tribunal has considered the written and oral evidence of the applicant and his admission that he does not have an intention to stay in Australia temporarily for the purpose of a visit.

19. In these circumstances the Tribunal is not 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 not met.

    Request for Ministerial Intervention

20. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

21. The applicant has outlined relevant history and his circumstances in a lengthy and informative statement.

22. In his statement of 23 May 2024 the applicant sets out his reasons for seeking Ministerial intervention and outlines his visa history, his employment and educational history, the circumstances of his marriage breakdown and consequential family violence orders and convictions and his expression of interest for a skilled visa together with his qualifications. In particular he refers to the disruption to the relationship between himself and his son now aged 6 years old and the impact of any continuing long-term separation of the applicant and his son.

23. The applicant stated he had exceptional and compassionate circumstances which he wished to present to the Minister. These included:

    ·His six-year-old son is in Australia living with his estranged wife. His wife has not permitted him to see his son since 1 February 2021 and he does not know his son’s current visa status. He is worried that if he leaves Australia he will not see his son again.

    ·The COVID 19 pandemic caused a delay in renewing his passport in 2020, as well as financial pressure and hardship, which contributed to the applicant losing the opportunity to apply for a Employer Nomination Scheme visa even though there was an approved position nomination in place.

    ·The change in policy by the New South Wales government meant that despite achieving the required English language score and a positive skills assessment in his occupation of Cook, it now seems unlikely that he will be invited to apply for the New South Wales State nomination for a subclass 190 Skilled Nominated visa.

    ·He has lived, worked and studied in Australia for more than 13 years, and has spent most of his adult life in Australia. He has no recent employment history in his home country of Bangladesh and is concerned as to how he would re-establish his life there if he had to return.

24. He has been advised that the Minister can intervene in his case if he thinks it is in the public interest but he has also been told that his chances of the Minister intervening in this case are low due to his convictions. He submits that he has already suffered significant emotional hardship being unable to see his son and this will only get worse if his current situation continues or he must leave Australia. He is confident he can make a positive contribution to Australia through his work if he is able to secure a new visa and will take practical steps to be able to see his child again. He accepts that the Tribunal will almost certainly affirm the refusal of his visitor visa application.

25. At the hearing held on 24 May 2024 the Tribunal put it to the applicant that the visa status and current circumstances of his son would be a significant issue in any referral for intervention. His representative acknowledged this but explained that despite their best endeavours they were not able to obtain this information from the applicant’s wife’s solicitors and the applicant was prohibited from having any contact with his wife under current Apprehended Domestic Violence Orders.

26. The Tribunal has given the applicant several extensions of time to obtain this information, but it appears that his request for further relevant information on this issue has not been successful and he has been advised that the only way in which he can obtain this information or pursue access to his son is through litigation in the Family and Federal Circuit Court of Australia. As the Tribunal considers that this may involve a lengthy process it advised the applicant that as the information on his son’s current circumstances would not be obtainable in the short term it would finalise the decision on the information it had before it, noting that the applicant can make a request for Ministerial intervention at any time and that he may have other options regarding his presence in Australia for the time being.

27. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM 3) but has decided not to refer the matter to the Minister due to their being insufficient relevant information on his son’s circumstances to refer the matter. The Tribunal considers that once the applicant has reliable information regarding his son’s circumstances, he may be in a better position to make a request. In any event, the applicant can make a request directly to the Minister at any time.

    DECISION

28. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Louise Nicholls
    Senior Member