CHU (Migration)

[2018] AATA 1587

CHU (Migration) [2018] AATA 1587 (7 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HAOWEN CHU

CASE NUMBER:  1714506

DIBP REFERENCE(S):  BCC2017/2318490

MEMBER:Roslyn Smidt

DATE:7 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 March 2018 at 5:30pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visa) – Tourist stream – Travel around Australia – Genuine intention to stay temporarily – Applied for a permanent visa – Failed to attend tribunal hearing

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 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 4 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he was not satisfied that the applicant genuinely intended to remain in Australia temporarily.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. The applicant arrived in Australia on 21 June 2017 on a UC-457 (temporary work visa) which remained in effect until 8 July 2017. On 29 June 2017 he applied for a FA600 Visitor visa for a stay until 1 October 2017 as he wished to travel around Australia.

8. According to the delegate’s decision the applicant also applied for an ENS 186 permanent Employer Sponsored visa on 29 June 2017.

9. The delegate found that the applicant wished to remain in Australia to seek permanent migration and therefore did not accept that he had a genuine intention to remain in Australia temporarily and refused his application.

10. On 12 February 2018 the Tribunal wrote to the applicant to invite him to attend a hearing at 3.30 pm on 7 March 2018. He was advised that if he did not attend the hearing a decision might be made without further action being taken to allow or enable him to appear before the hearing. No response has been received to this invitation. The Tribunal also attempted to send him two SMS messages confirming the date and time of the hearing, they could not be delivered.

11. If the applicant had attended the hearing it would have been possible to obtain information on his current circumstances and intentions. However, he failed to appear or to provide an explanation for his absence.

12. On the evidence currently before it the Tribunal is not satisfied that he 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 not met.

    DECISION

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

    Roslyn Smidt
    Member