Chepkyi (Migration)

[2018] AATA 1414

Chepkyi (Migration) [2018] AATA 1414 (11 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Vitalii Chepkyi

VISA APPLICANT:  Mr Ihor Chepkyi

CASE NUMBER:  1719477

DIBP REFERENCE(S):  BCC2017/2324745

MEMBER:Tania Flood

DATE:11 April 2018

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 11 April 2018 at 4:44pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Established career – Full-time employment – Family ties in home country – English language – Compliance of visa by family – Security bond

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 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 25 July 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 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 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 visa was refused on the basis that the visa applicant did not meet cl.600.211 because the Delegate was not satisfied that he genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 10 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas.  The Tribunal hearing was conducted with the assistance of an interpreter in the Ukrainian and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

8. The visa applicant was born on 26 August 1974 in Uman, Cherkasi.  He is a citizen of the Ukraine.  He is married with two children aged 22 and 11.  He is employed in a managerial role.  At the time of application he stated he would like to visit his brother in Australia and to participate in the baptism of his nephew.

9. The review applicant is the visa applicant’s brother.  He is married with one child. 

   TRIBUNAL HEARING

10. The review and visa applicants provided consistent and credible information to the Tribunal which is summarised as follows:

11. The review applicant married an Australia citizen and subsequently obtained Australian citizenship.  He divorced his first wife and remarried in 2016.  He has one child with his current wife and they are expecting a second child.

12. The review applicant runs his own office fit out business.  His wife is not working.

13. The review applicant has no other family in Australia.  His father, mother and older brother (the visa applicant) live in the Ukraine. 

14. The review applicant’s father visited Australia in 2017 and his mother-in-law has also visited Australia.

15. The visa applicant is married with two children aged 22 and 11.  They live in Uman, the city of his birth, in their own apartment which they have owned for more than twenty years.

16. The visa applicant is the manager of a company called Etalong.  He has worked in the same role since 2014 and earns approximately $8,500 per month.  His wife works at the hospital. 

17. The visa applicant has not travelled before.  He would like to visit his brother in Australia for up to two months and see the life he has made for himself.   He is entitled to thirty-five days annual leave and if he visits Australia for longer he will take the remainder of the time as unpaid leave.  He has savings with which to pay for his air ticket and while in Australia he will stay with his brother.

18. The visa applicant will return to the Ukraine at the end of his visit because his own family will be waiting for him there.  Also, his parents are getting older and at least one of their children needs to be at home to take care of them.  Whereas the review applicant moved to Australia as a young man the visa applicant has established his own family and business in Ukraine.  He does not speak English and it would be much harder for him to move to another country than it was for his younger brother who had no responsibilities when he left Ukraine.

19. The visa applicant reported having no difficulties with his life in Ukraine for reason of race, religion, politics, or for any other reason.

20. The review applicant is expecting a second child and they would like to apply at a later date for his mother to visit Australia so that she can support them when the baby arrives. 

21. The review applicant is willing to provide a security bond of approximately $15,000 in order to facilitate the grant of the visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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.

23. In the present case, the visa applicant seeks the visa for the purposes of visiting family.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

24. 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)).

25. The review applicant entered Australia as the holder of a Special Program (TE-416) visa on 26 October 2005.  He departed Australia on 13 October 2006 before his visa ceased.  On 10 January 2007 he was grant a Temporary Work (Skilled) visa and returned to Australia on 15 February 2007.  On 14 April 2008 and 19 January 2011 he was granted Partner Visas.  On 25 June 2012 he became an Australian citizen.

26. The visa applicant has never visited Australia. 

27. The review and visa applicant’s father visited Australia on 12 October 2017 as the holder of a Visitor visa.  He departed Australia on 15 November 2017 before his visa ceased.

28. The review applicant’s mother-in-law visited Australia on 30 November 2016 as the holder of a Visitor visa.  She departed Australia on 1 February 2017 before her visa ceased.

29. 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(2)):

    ·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.

30. On the available evidence the review and visa applicants are both in full-time employment.  The Tribunal is satisfied that the visa applicant has the means to purchase his own air ticket and for the duration of his visit to Australia the visa applicant will reside with the review applicant who will also assist him with other living expenses.   The Tribunal is satisfied that the visa applicant has the right to return to his place of employment in Ukraine at the end of his visit.  He is proposing a short visit of between one and two months to spend time with his brother and his family.  In the circumstances, the Tribunal is satisfied that the visa applicant will not, and has no need to, work in Australia if granted a visa.  Similarly, the Tribunal is satisfied he will not engage in study or training if he is granted a visa to visit his brother.  The Tribunal finds the visa applicant will comply with conditions 8101 and 8201 if he is granted the visa.

31. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

32. Whereas the visa applicant’s only sibling is residing in Australia the available evidence supports that he has a wife and two children, one of which is aged just eleven, in Ukraine.  In addition, his mother and father who are advancing in years reside in Ukraine.  The Tribunal considers the visa applicants family ties in Ukraine far outweigh any family ties he has in Australia. The Tribunal considers the visa applicant’s family ties in Ukraine provide a strong incentive for him to return home at the end of his visit.

33. The Tribunal has considered the fact that the review applicant travelled to Australia with the intention of remaining temporarily but subsequently applied for a permanent visa.  The visa applicant is considerably older than the review applicant was at the time of his departure from Ukraine and reportedly speaks no English.   In addition, he has an established career and family life in Ukraine.   The Tribunal is satisfied that the visa applicant’s circumstances are different to those of his brother and that they do not constitute a reason for him to want to seek to remain permanently in Australia.

34. The Tribunal acknowledges that the visa applicant has no migration history of his own.  However, the Tribunal has afforded weight to the fact that the review applicant’s father and mother-in-law have travelled to Australia on Visitor visas in recent times and returned to Ukraine before their visas ceased.  Furthermore, the Tribunal accepts that the review applicant intends to apply for a Visitor visa for his mother in order for her to help them in the busy months following the birth of his second child.  In the Tribunal’s view this provides a strong incentive for him to ensure his brother’s compliance with the conditions of his visa so as not to interfere with these plans.

35. The Tribunal also places weight on the review applicant’s willingness to pay a significant security bond if it is required in order to facilitate the grant of the visa.   

36. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

37. 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

38. 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.

    Tania Flood
    Member