Aryani (Migration)

[2023] AATA 962

Aryani (Migration) [2023] AATA 962 (6 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Fety Aryani

VISA APPLICANT:  Ms Murhani Dewi Sulisti

CASE NUMBER:  2210654

HOME AFFAIRS REFERENCE(S):          BCC2022/1356110

MEMBER:Anne Grant

DATE:6 April 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 06 April 2023 at 11:56am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant visit – desire for further family visits – property ownership in Indonesia – family responsibilities in home country – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 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 20 June 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 21 April 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 the applicant had demonstrated sufficient family ties to her home country, or that the applicant had sufficient personal, business, employment and cultural ties to Indonesia to demonstrate that the applicant intends a genuine temporary stay in Australia. 

5. The review applicant appeared before the Tribunal on 6 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Indonesia.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting family in Australia.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

9. 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)).

10. The visa applicant has previously visited Australia on a visitor visa in 2011.  This was a sponsored visa, with the review applicant as a sponsor. Departmental records reflect that she complied with the conditions of that visa, including departing in accordance within the necessary period.  This was confirmed by the visa applicant at hearing. The visa applicant also applied for and was granted a visitor visa on 20 February 2020 but due to the pandemic, she was unable to visit Australia at that time.   On the information and evidence before me, I find that the visa applicant has complied substantially with the conditions of the last substantive visa she has held. 

11. 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.

12. The visa applicant gave evidence that she wants to visit her sister as they haven’t seen each other for about four years.  She confirmed that she would comply with all conditions of the visa, including those listed above. The visa applicant and the review applicant both gave evidence that they were aware that if the visa applicant breached the conditions of her visa, the review applicant’s capacity to successfully sponsor other visitors in future might be affected.  The review applicant and her husband have sponsored other persons from her husband’s family to visit Australia and they have always complied with the conditions of their visa.

13. Having had the opportunity to discuss her circumstances and intentions as noted above with the review and visa applicants, I am satisfied that the visa applicant intends to comply with the conditions of the visa, if granted. 

14. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Review applicant confirmed that she intends to and has the capacity to purchase the applicant’s tickets and provide her with accommodation and spending money in Australia.  Bank statements have been provided showing that the review applicant is financially stable. The visa applicant confirmed that she does not work but is supported by the income from a rental property of 7 million rupiah per annum, and regular transfers from her children and her sister, with all of the income she receives totalling around 43 million rupiah per annum.   I noted that this was a modest income, below the minimum wage, and the visa applicant agreed, but said that she is comfortable because she lives in her parents home (and consequently has no accommodation costs) and has no debts.   

15. The visa applicant gave evidence that her two adult children live in Indonesia.  Her daughter works as a telemarketer (four years) and her son as an employee in a restaurant (two years).  They live independently and neither of them is married.  She lives with her parents.  She also has two brothers and a sister living in Indonesia.  In Australia there is just her sister and her sister’s family. The visa applicant gave evidence that she provides care for her parents and principally her father who has to be taken to regular medical visits, and needs to have his blood pressure and blood sugars monitored daily.  She gave evidence that she intends to stay in Australia for about one month only.  If she is allowed to visit Australia, her other sister will step in to help her mother and father in that period. 

16. The visa applicant gave evidence that she has responsibilities involving her parents, her children and her property and she would definitely return to Indonesia in compliance with the visa conditions. I accept the visa applicant’s evidence. 

17. Having considered all of the information and evidence and other relevant factors in this case, I find that the applicant has demonstrated that she has a comfortable financial position, strong connections to close family, including her children, parents and siblings, that she also has caring responsibilities for her elderly parents in Indonesia, as well as responsibility for the management of her own rental property.  All of these factors provide a strong incentive for the visa applicant to return home at the end of a visit with her sister in Australia.  I am satisfied that the visa applicant genuinely intends to visit her sister and stay temporarily in Australia for that purpose. 

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.

    Anne Grant
    Member