Atandi (Migration)

[2017] AATA 1488

Atandi (Migration) [2017] AATA 1488 (21 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Rhoda Atandi

VISA APPLICANT:  Master Aiden Atandi

CASE NUMBER:  1713181

DIBP REFERENCE(S):  KE01011408-O

MEMBER:Ann Brandon-Baker

DATE:21 August 2017

PLACE OF DECISION:  Brisbane

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 21 August 2017 at 1:32pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 – Genuine temporary entrant – Review Applicant unwilling to jeopardise permanent visa application – No breach of previous visa conditions

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 600.211

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 15 June 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 visa applicant applied for the visa on 6 June 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 the delegate was not satisfied that the applicant intended a genuine visit.

5. The review applicant appeared before the Tribunal on 21 August 2017 to give evidence and present arguments.

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

   BACKGROUND

7. The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

8. The visa applicant is a citizen of Kenya born on 25 March 2013 (4 years old). His mother, Ms Roda Atandi (dob 30 December 1988) is an Australian permanent resident, granted in December 2016, and she is the review applicant.

9. The visa applicant has applied to travel with his grandmother, Josephine Atandi (dob 12 August 1968), the review applicant’s mother, as a tourist to Australia on 5 August 2017 for the purpose of visiting the visa applicant’s mother and uncle who are currently resident in Australia.

10. The delegate found that the visa applicant’s familial ties in Australia were stronger than those in Kenya and hence formed a view that the visa applicant did not intend a genuine visit.

11. Prior to the scheduled hearing the review applicant stated that the visit of the visa applicant and his grandmother was to be for a month during the applicant’s school holiday and that he would return to Kenya for Term 3. She also stated that she plans to apply for residence for the applicant towards the end of the year in order for him to return to Australia permanently at the beginning of 2018.

12. The department’s movement records show that the review applicant arrived in Australia as a student on 24 January 2014. She departed Australia on the following occasions

    1.    15 December 2014 to 8 January 2015;

    2.    19 May 2016 to 13 June 2016 (on a subclass 485, skilled independent visa); and

    3.    28 April 2017 to 14 May 2017.

13. The review applicant also provided a copy of a fee invoice for the Tender Care Junior Academy Ltd for 3 terms in 2017 for the applicant to attend the Nursery stream of tuition.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. In the present case, the visa applicant seeks the visa for the purposes of visiting his mother for one month during the school holidays. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

16. 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)).

17. The review applicant arrived in Australia on a student visa and was subsequently granted permanent residence in December 2016. There is no evidence before the Tribunal that the review applicant has ever breached any of the visa conditions attached to her previous temporary visas. Equally, the review applicant’s brother has recently arrived in Australia as a student and lives with her. There is no evidence before the Tribunal that he has breached any of his visa conditions.

18. The review applicant’s mother has recently visited Australia and abided by her visa conditions and returned prior to its cessation.

19. The review applicant told the Tribunal at the hearing that she hoped that both her parents would be able to visit her in the future and was strongly motivated to ensure that all members of her family would comply with Australian law and the conditions placed on their visas. She said that she was a permanent resident and did not want to do anything that might jeopardise her position or in some way affect the ability of herself or members of her family from travelling to Australia legitimately.

20. 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.

21. The Tribunal has considered whether the visa applicant and the review applicant will abide by these conditions.

22. In relation to the no work condition, the visa applicant is only four years old and hence the condition is not relevant to his circumstances.

23. In relation to the not engage in study for more than 3 months, the visa applicant will only be in Australia for a short time of less than two or three weeks before he would be required to return to Kenya to attend the school in which he is enrolled. The review applicant told the Tribunal that he would not be studying whilst he was here, but would be holidaying with her and her brother. The Tribunal is satisfied that the visa applicant would abide by this condition of his visa.

24. In relation to the condition 8503, not entitled to a substantive visa other than a protection visa whilst in Australia, the Tribunal discussed this with the review applicant. She told the Tribunal that she had in her mind an orderly approach to obtaining permanent residence for her son through the lodgement of a child visa at some time towards the end of the year. She said that she anticipated that this would take around a year or perhaps more and she was prepared for this. The review applicant re-iterated her earlier statements that she did not want to do anything that would jeopardise the ability of other family members to visit her in Australia and she had no intention of destroying her credibility in these matters by lodging a protection claim on behalf of her son. The Tribunal is satisfied that the visa applicant would abide by this condition of his visa.

25. In relation to condition 8531, the Tribunal asked the review applicant whether there were any circumstances she could envisage which would lead her to lodging an application to extend the term of her son’s visa in Australia and she said that she could not. She said that he was expected to return to school in the second week of September and that he would only be here for a short time. Asked why she wanted to see him again so soon after she saw him in May, the review applicant said that she wanted her son to see what Australia was like before she applied for him to come back permanently. She also claimed that it was unlikely that she would be returning to Kenya this year which meant that she would not see him again for some time. The Tribunal is satisfied that the visa applicant would abide by this condition of his visa.

26. The Tribunal has considered PIC 4011 in the context of the delegate’s remarks that the visa applicant had more and stronger familial ties to Australia than he has ties to Kenya and raised this with the review applicant. Again, the review applicant assured the Tribunal that she was motivated to ensure that the visa applicant abided by the conditions of his visa and returned to Kenya. She said that she did not want to do anything that would impact adversely upon any future applications that members of her family made to visit Australia.

    CONCLUSION

27. 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

28. 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.

    A B Baker
    Senior Member