Bojku (Migration)

[2019] AATA 1713

Bojku (Migration) [2019] AATA 1713 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Blerta Bojku

VISA APPLICANT:  Mr Leudrit Dedoviq

CASE NUMBER:  1801547

HOME AFFAIRS REFERENCE(S):           OSF2017/014697

MEMBER:Nora Lamont

DATE:27 February 2019

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 27 February 2019 at 9:00am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream.– genuinely intends to stay in Australia temporarily – visa to visit sister and newborn baby – delegate’s refusal vague and nonspecific – significant incentives to return to home country – unwell father – steady employment – family business – no security issues or civil disruptions in home country – no adverse information before Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 22 November 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 29 October 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 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 to stay in Australia temporarily.

5. The review applicant appeared before the Tribunal on 26 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Montenegro. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian 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 his sister and brother in law. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

9. The applicant applied for the visa on 29 October 2017 and wished to visit his sister and meet her newborn baby. The application was refused on 22 November 2017.

10. The delegate’s refusal is vague and nonspecific. The delegate states that they have taken into account information provided in the application, the applicant’s immigration history and documentation provided in support of the visa application. They also considered the applicant’s personal circumstances, commitments, and incentive to return to their country of residence. The delegate stated they were not satisfied the applicant genuinely intended to stay temporarily in Australia.

11. The applicant is a 24 year old male who lives with his parents on a farm in Montenegro. He is currently employed at a restaurant full time and did provide the Tribunal with an employment contract. The applicant has not seen his sister in three years and has never met her baby.

12. The applicant’s sister, the review applicant told the Tribunal that her brother has no intention of coming to Australia to reside permanently as his father had a heart attack and he is needed to assist his family on the farm in Montenegro. The applicant also has a fulltime position he must return to.

13. 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)).

14. The applicant has not travelled outside of Montenegro therefore there is no evidence that the applicant has complied substantially with the conditions of the last substantive visa he held. However, whilst there is no demonstrated history of travel and compliance with visa conditions, there is no adverse information before the Tribunal. The applicant is young, and therefore it is not realistic to expect the applicant to have a long or varied travel history.

15. The applicant’s sister arrived in Australia on a partner visa and there is no adverse information to indicate that there is a family history of non-compliance with visas. Therefore there is nothing to indicate the applicant’s family have an adverse immigration history which is relevant to his genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.

16. 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.

17. The applicant intends to visit his sister and then return to his home country and his full time position. There is nothing before the Tribunal that indicates the applicant intends to work study or remain in Australia after the end of his permitted stay. The Tribunal is satisfied that the applicant will comply with the conditions of his visa.

18. The Tribunal has also considered all other relevant matters (cl.600.211(c). The Tribunal scanned current country information and it has not been able to identify any cause for concern in terms of its security or other civil disruptions. Therefore the Tribunal is satisfied the applicant is wanting to visit his sister in Australia and the Tribunal is satisfied that the applicant genuinely intends to stay in Australia temporarily.

19. 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

20. 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.

    Nora Lamont
    Member