Allcott (Migration)

[2023] AATA 1831

Allcott (Migration) [2023] AATA 1831 (24 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Naruemon Allcott

VISA APPLICANT:  Miss Naphatson Audomsri

CASE NUMBER:  2207290

HOME AFFAIRS REFERENCE(S):          BCC2022/436537

MEMBER:Anne Grant

DATE:24 March 2023

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 24 March 2023 at 2:34pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – previous compliant visits – evidence of employment and income – property ownership in Thailand – decision under review remitted    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.222, 600.612

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 2 April 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 24 February 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 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 they were not satisfied that she genuinely intended to visit temporarily for the purpose of the visa.  

5. The review applicant appeared before the Tribunal by video conference using the MS Teams application on 16 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The review applicant was represented in relation to the review by her partner, Mr David Scott. The representative attended the Tribunal hearing.

7. Prior to the hearing, the Tribunal received and considered the following information: 

   ·Letter from David Scott, the review and visa applicant’s representative and the partner of the review applicant. Mr Scott outlines that he and the review applicant have been in a relationship or three years and live together at an address in Gippsland.  He confirms that the visa applicant had previously stayed with them at the property in Gippsland (where there are two houses) and complied with all visa requirements.  He is a surgeon with a high income and is able to support the visa applicant financially during her stay including by accommodating her as he has done in the past.

   ·Bank Statements showing a balance in Mr Scott’s Commonwealth Bank Account of $253,375. 

   ·Divorce information for the review applicant’s previous marriage. 

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 her mother and her mother’s partner. This is a purpose for which a visa in the Sponsored Family 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)).  I have considered movement records provided by the Department.

12. The visa applicant travelled to Australia on multiple occasions on a visitor visa each time as follows: 

    ·    Arriving 11 November 2010 and departing 29 November 2010;

    ·    Arriving 7 July 2016 and departing 5 October 2016;

    ·    Arriving 13 March 2019 and departing 3 June 2019;

    ·    Arriving 15 August 2019 and departing 6 November 2019;

    ·    Arriving 28 November 2019 and departing 21 January 2019. 

13. According to the information contained in those movement records, the visa applicant on every occasion departed Australia within the allowable term of her visa.  I have reviewed the departmental file and there is no information before me suggesting that the visa applicant has failed to comply with the conditions of any previous visas she has held.  The visa applicant confirmed that she had always departed Australia before the visa end date and complied with the conditions of her visas, and that she would do so again, if the visa was granted.

14. Significant weight should be given in this review to the compliant visa history of the visa applicant. 

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 600.612):

    ·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. The visa applicant gave evidence that she would comply with all conditions of a visa, including not working or studying, not applying for any other substantive visa, or remaining in Australia after the end of a permitted stay period.  Taking into account her compliant history, I accept as reliable the visa applicant’s evidence and I am satisfied that she intends to comply with all and any visa conditions imposed. 

17. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal heard evidence that during 2019 when she visited Australia a lot, she went with her sister and was not working at that time. It was after her grandmother died about three years ago and she had been her carer.  Her mother wanted her to come to Australia at that difficult time to be with her mother, and they did a number of tourist trips each time she was here, including Phillip Island, Melbourne City and many other places.  She gave evidence that she now has full time employment and is able to take four weeks leave a year – she would like to use her leave to visit her mother and Mr Scott again, as there is still a lot to do and see in Australia.  Her representative confirmed that she is welcome to stay with them again and indeed he intends that they will travel as a family between the home and a beach house if she is able to come during school holidays.

18. The visa applicant gave evidence (and I accept) that she lives in her own home with her sister in Thailand.  They own that home.  She gave evidence and it is accepted that she now has work for Mr DIY (Bangkok) Co. Ltd and has been working for them for two years.  She has provided evidence to the Department of her employment and income.  Before that, she had not been working. 

19. Having considered the visa applicant’s evidence and the submissions from her representative, and after giving weight to her visa history and her evidence that she intends to comply with the conditions of a visa, her stable employment and accommodation in Thailand, her sister who remains in Thailand and with whom the visa applicant resides, and the availability of financial support and accommodation during her stay in Australia, I am satisfied that that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and that the requirements of cl 600.211 are met.

    DECISION

20. 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.

    Anne Grant
    Member