Bell (Migration)

[2024] AATA 1116

Bell (Migration) [2024] AATA 1116 (3 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ricky James  Bell

VISA APPLICANT:  Miss Nesinee Kaiyawan

CASE NUMBER:  2306283

HOME AFFAIRS REFERENCE(S):          BCC2023/2336444

MEMBER:Christine Cody

DATE:3 May 2024

PLACE OF DECISION:  Sydney

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 3 May 2024 at 3:47pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – incentives to depart or remain – visa and review applicants married and partner visa application in progress – review applicant’s multiple visits and long stay during COVID restrictions – visa applicant’s work supported by review applicant, and family – previous visitor visa refused – application for partner visa made after current application refused – credible oral evidence and significant documentation – incentive not to jeopardise partner visa application – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 4 May 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The visa applicant is a Thai national who is married to the review applicant, an Australian national.

2. The visa applicant applied for the visa on 16 April 2023. A significant amount of documentation was provided in support. 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 (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 for the reasons set out below:

   I note the applicant has indicated that they will be visiting an Australian citizen and that this person will be supporting their proposed stay in Australia. While such support is important in assisting a decision maker to assess the merits of each case, it is not in itself sufficient evidence that a genuine temporary stay is intended. The onus remains with the applicant to demonstrate their intention to undertake a genuine temporary stay. When considered against the other factors of the case, the inviter’s support has not been sufficient in overcoming my concerns around the applicant’s personal circumstances and incentive to return.

   The applicant has stated that they are employed with Chang Thian (Family Business) and has provided some evidence to support their claims. However, insufficient independent and verifiable evidence of their employment has been provided to demonstrate that they are receiving an ongoing income. I have therefore not accorded much weight to the applicant’s declared employment as an incentive for them to depart Australia and return to their country of residence within the duration of the proposed visit.

   On balance, I find that the applicant has failed to adequately demonstrate strong employment, financial and other personal commitments that may support the likelihood of their compliance with the conditions attached to the visa and their return home at the end of their proposed stay in Australia.

   After considering the information provided, I am not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.

   Therefore, I am not satisfied that the applicant meets the relevant criteria in clause 600.211 in Schedule 2 of the Migration Regulations.

5. The review applicant lodged an application for review with the Tribunal. A significant amount of documentation was provided in support. The review applicant appeared before the Tribunal on 3 May 2024 via MS Teams video to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone with the assistance of an interpreter in the Thai 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 her Australian citizen husband. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

   Relevant claims and evidence

9. The applicants have provided a significant amount of evidence to support the existence of their relationship. The Tribunal has also considered the oral evidence of the review applicant and found that he was a credible witness who was frank and open about the details of their relationship, the visa applications made, and their intentions. The visa applicant as a witness also gave evidence by telephone and her evidence supported and was consistent with that of the review applicant. The Tribunal accepts the following (for the purposes of this decision[1]):

   ·     The review applicant is a plaster painter who met the visa applicant online in January 2018, and then travelled to Thailand and met her in person in April 2018. He visited again in October 2018 and they became a couple. Since then he has visited about many times, he usually visits 2-3 times per year and stays for a month or more at a time. During the COVID pandemic he stayed in Thailand with her for 11 months. They married in March 2023: his father came to Thailand for the wedding and met her beforehand, and his father has now visited them in Thailand for the second time. Most recently the review applicant visited her for their one-year wedding anniversary. The only overseas travel he has done since he met the visa applicant has been to visit her in Thailand[2].

   ·     This was the second time the visa applicant had lodged a visitor visa and been refused. The applicants had initially thought of living in Thailand however when thinking of the future they thought it would be better to come to Australia. Their idea was that the visa applicant would visit him in Australia to see whether she wanted to live in Australia or in Thailand. When the second visitor visa application was refused in May 2023, the review applicant lodged an application for review with the Tribunal and subsequently called the Tribunal to find out how long before he would have a hearing. The projected time was longer than he had anticipated, so on 1 December 2023 the visa applicant lodged her offshore partner visa application. Further information was requested by the Department in February 2024 in relation to the partner visa application and he provided a response in March 2024.  He said the application is still pending.

   ·     The visa applicant has only travelled to Laos with her father and sister for a period of a few days; she complied with immigration requirements. The review applicant complied with Thailand’s visa requirements (and in particular during the Covid period he obtained a special tourist visa and an extension of his visa to allow him to stay with the visa applicant).

   ·     He notes that the visa was refused by the delegate because of the visa applicant’s finances; he admits that she is from a poor family but she does work (she has worked as a barista and in a pharmacy and last year he invested in a nail salon for her that she now runs). He promises to fully support his wife and has the means to do so.

   ·     Character information was also provided suggesting that the applicant is of good character.   

   ·     The applicants have had an ongoing committed relationship for 6 years and while the partner visa application is pending, the applicants want to spend time together in Australia for a visit.

   ·     There is no incentive for the visa applicant to stay in Australia apart from the incentive to be here with the visa applicant; all of her family is in Thailand.  She will abide by the conditions and depart in accordance with the terms of the visitor visa; they do not want to jeopardise the partner visa application.

   [1] The Tribunal notes that it is not considering the partner visa application.

   [2] Departmental movement records support the review applicant’s evidence of his travel in and out of Australia.

   Clause 600.211

10. 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)).

11. The review applicant confirmed that the visa applicant has never visited previously and the Tribunal noted there was no record of the visa applicant having previously come to Australia.

12. 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 600.611(3)):

    ·8101 – must not work in Australia

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

13. The review applicant said that the visa applicant will have no need to work and will not work because he will support her, nor will she study more than 3 months. The visa applicant also confirmed that she would comply with these conditions.

14. The Tribunal notes that other conditions that “may” be imposed are  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; 8558 – limit of more than 12 months in any period of 18 months. As these are not the mandatory conditions the Tribunal has not considered these however it is prepared to accept that the visa applicant would comply with these conditions if they were imposed.  

15. The Tribunal accepts that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject.

16. The Tribunal has also considered all other relevant matters (cl.600.211(c)), which are set out in paragraphs 9 above.

17. 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

18. 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.

    Christine Cody
    Member