ALMEIDA DE OLIVEIRA (Migration)

[2019] AATA 5853

ALMEIDA DE OLIVEIRA (Migration) [2019] AATA 5853 (27 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms NEIDE ALMEIDA DE OLIVEIRA

CASE NUMBER:  1805777

HOME AFFAIRS REFERENCE(S):          BCC2018/174856

MEMBER:Melissa McAdam

DATE:27 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 September 2019 at 11:16am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – sponsor may be employer rather than relative – applicant departed Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.611; Schedule 8 Condition 8101

CASES

Hasran v MIAC [2010] FCAFC 40     

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 Immigration on 14 February 2018 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 January 2018. 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 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the applicant to satisfy the Minister that the 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 applicant did not meet cl.600.211.

5. On 2 September 2019 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting her to provide information relevant to her current circumstances and whether she genuinely intended to stay temporarily in Australia for the purpose of a Visitor visa, in writing.

6. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 25 September 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

8. For the following reasons, the Tribunal has decided 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 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 spending more time with her ’nephew’ in Australia. The applicant came to Australia on a Visitor visa on 12 July 2017.  She then applied for a further Visitor visa.  The refusal of that visa application is the subject of this review.

11. According to the Department’s records the applicant departed Australia on 3 June 2018 and has not returned.

12. In considering whether an 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)).

13. The applicant previous Visitor visa expired on 12 January 2018.  As she did not depart before the expiry of the visa the Tribunal finds the applicant did not comply with this visa condition.

14. The Tribunal must also consider whether the 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.

15. The Department’s decision record contains allegations, put to the applicant, that she was working for the man she described as her nephew, in Australia, contrary to her visa conditions. The applicant did not formally deny that she was working but presented evidence that the man was not her nephew but referred to her ‘aunty’ as a familiarity. There is no other information or evidence about the allegation and the applicant has not responded to the Tribunal’s request for information.

16. On the information before it the Tribunal is not satisfied that the applicant intends to comply with Condition 8101.

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

18. The applicant has not provided any information or evidence to the Tribunal that she currently  intends to stay temporarily in Australia for the purpose for which the visa is granted. On the evidence before it the Tribunal is not satisfied that the 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.

    DECISION

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

    Melissa McAdam
    Member