ALVES DIAS (Migration)

[2019] AATA 1827

ALVES DIAS (Migration) [2019] AATA 1827 (31 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eduardo Alves Dias

CASE NUMBER:  1727481

HOME AFFAIRS REFERENCE(S):           CLF2018/71670

MEMBER:Christine Cody

DATE:31 May 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 31 May 2019 at 6:03pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – failure to attend Tribunal hearing – remain in Australia as a visitor having previously held a student visa – departed Australia at time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, 600.411, 600.412

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 20 October 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 September 2017. 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 applicant was onshore as a student, studying a Diploma of Leadership and Management which was due to finish in August 2017. He noted that his student visa would end on 4 October 2017. He said he was fully committed to his study and thus did not get the chance to travel around much. He sought a further stay as a visitor to allow him to travel around Australia (until March 2018) before departing. He indicated that he would be self-funded.

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 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 applicant did not meet cl.600.211 because the delegate was not satisfied that the applicant had a genuine intention to stay temporarily in Australia. On 20 September 2017, the applicant had been requested by the delegate to provide information within 7 days relevant to that issue, including relevant to his immigration history (evidence that he had completed his course requirements and held a satisfactory attendance certificate) and evidence of adequate funds to support his stay including three months of bank statements. The delegate noted that there was no response to this request.

5. The applicant lodged an application for review and provided an email address to the Tribunal as his address for correspondence. He was informed that he should let the Tribunal know if there was any change to his contact details. He did not do so.

6. On 10 May 2019 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 28 May 2019. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

7. No response to the hearing invitation was received, and the email was not returned to sender. The applicant did not appear before the Tribunal on the day and at the scheduled time and place of the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act and the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review application without taking any further action to enable the applicant to appear before it.

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 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 applicant seeks the visa for the purposes of remaining in Australia as a visitor and having held a student visa. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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. It was the applicant’s evidence that he had previously held a student visa and that he had been studying. He stated in his application form that his course was due to finish in August 2017. He did not provide to the delegate, despite the request, evidence that he had substantially complied with the requirements of his student visa. Further, in providing the delegate’s decision record to the Tribunal with the application for review, the applicant indicated that he was aware of the request to provide information about his studies, that he had not done so; yet he did not provide any evidence to the Tribunal in this regard. The Tribunal is unable, on the evidence before it, to be satisfied that the applicant complied substantially with the conditions of the last substantive visa held (his student visa).

13. 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 include:

    ·8101 – must not work in Australia;

    ·8201 – must not engage in study or training in Australia for more than 3 months;

    ·8503 – is 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 has also considered all other relevant matters: cl.600.211(c).

15. The applicant had only provided with his application form the first of 10 pages of a bank statement showing three days of activity in July 2017. This showed that he had an opening balance of $569 on 17 July 2017, and that on 20 July 2017 he had $461. The first page indicated that there were a further 9 pages (not provided) which showed that he had deposited over $35,000 between July and September 2017. The applicant had been requested by the Department to provide three months’ worth of bank statements, but he had not done so. He has not explained how he accumulated such a significant amount of funds in a three-month period while in Australia as a student.

16. The applicant had provided his proposed itinerary to the Department together with proposed flight details for leaving Australia. He indicated that he intended to leave Australia after travelling around, in March 2018. The Tribunal notes that according to Departmental records, the applicant appears to have left Australia six months after his intended date of departure. He has not provided any updated information to the Tribunal on his activities while in Australia which means that the Tribunal is not able to be satisfied that he intended to stay as a genuine visitor in Australia. Thus, although on the one hand his departure may suggest that he only intended a genuine temporary stay as a visitor, the Tribunal is unable on the evidence before it to say that it is satisfied that this is the case. It is unfortunate that the applicant did not respond to the emailed hearing invitation or provide any further information to the Tribunal.

17. For the above reasons the Tribunal is not satisfied that the applicant genuinely intended 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.

18. Even if however the above was not applicable, the Tribunal notes that it would have to affirm the decision under review, because according to cl.600.4:

    Circumstances applicable to grant -
    600.411
    If the applicant is in Australia at the time of application, the applicant must be in Australia at the time of grant.
    600.412
    If the applicant is outside Australia at the time of application, the applicant must be outside Australia at the time of grant.

19. The applicant was in Australia at the time of application; he has not provided any evidence to show that he is currently in Australia at the time of decision, and the Tribunal is not satisfied that he is.

    DECISION

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

    Christine Cody
    Member