Cadiente (Migration)

[2017] AATA 1476

Cadiente (Migration) [2017] AATA 1476 (28 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ann Marie Jaz Cadiente

CASE NUMBER:  1701948

DIBP REFERENCE(S):  BCC2017/425202

MEMBER:Meena Sripathy

DATE:28 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 August 2017 at 10:50am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Genuine temporary entrant – Purposes related to business – Seeking further training within business – Ineligible to apply for Business Visitor stream from within Australia

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 600.221, Item 1236(5)

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 3 February 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 1 February 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 Tourist 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.600.221 because the delegate was not satisfied that the applicant intended to visit or remain in Australia for any other purpose that is to related to business or medical treatment. The delegate was not satisfied that the applicant intends to remain in Australia as a visitor because their primary purpose for requesting the visa is related to business given her response on the application form “will need further hands on training with company director/CEO for new tasks and additional role.

5. The applicant appeared before the Tribunal on 28 August 2017 to give evidence and present arguments. She gave evidence to the Tribunal about her visa history and purpose in seeking this visa extension.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.221 is met, which requires the Tribunal to be satisfied that the visa applicant intends to visit Australia or remain in Australia to visit an Australian citizen or Australian permanent resident who is a particular kind of relative; or for any other purpose that is not related to business or medical treatment.

8. In the present case, the visa applicant indicated in her application in relation to the reason for the visa “will need further (hands on) training with company director/CEO for new tasks and additional role”.

9. At the hearing, the applicant confirmed the purpose for seeking this extension.  She said she wanted to continue her business activity she had been doing since she first came to Australia in March 2016.  She told the Tribunal she applied for a business visit visa from offshore and first arrived on this visa in March 2016.  She was granted a 12 month multiple entry visa and came and went several times, before she lodged the present application from onshore. She confirmed that she applied for the visa to continue to do the work she was doing because she needed some further training.

10. The Tribunal explained that it is required to apply the law in the Act and Regulations in making its decision.  It appears from the Regulations that she cannot make an application for under the Business Visitor stream from within Australia (having regard to Item 1236(5) of the Regulations), and the permitted intentions for a Tourist stream is as stated in cl.600.221.  In light of her evidence in her application and orally to the Tribunal about her intention and purpose for this application it would appear she does not meet this clause.  The Tribunal also noted that her stated activity may not come within the meaning of a business visitor activity for the purposes of the criteria for Business Visitor stream even if she were to have been able to apply for this stream from within Australia.  It invited her comment or arguments. The applicant said she understood and had no further comment to make.  She said she did not realise she could not apply for a further Business Visitor visa from within Australia. 

11. Having considered the applicant’s evidence the Tribunal finds her a purpose to remain in Australia is not a purpose for which a visa in the Tourist stream may be granted: cl.600.221.

12. Therefore the Tribunal is not satisfied that the visa applicant intends to remain in Australia for a purpose permitted under the Tourist stream and finds that the requirements of cl.600.221 are not met.

    DECISION

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

    Meena Sripathy
    Member