Connors (Migration)

[2018] AATA 4704

Connors (Migration) [2018] AATA 4704 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Andreina Connors

VISA APPLICANT:  Mrs Maria Belen Delgado de Lugo

CASE NUMBER:  1721550

HOME AFFAIRS REFERENCE(S):           BCC2017/2743831

MEMBER:Nora Lamont

DATE:8 October 2018

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 08 October 2018 at 7:39am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) (Class FA) visa – genuine temporary entrant – prior travel to Australia – complied with previous visa conditions – family ties in home country – poor economic situation – adequate finances for trip – letter of support from family in Australia – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.231

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 6 September 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 2 August 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 of the current political and economic situation in Venezuela.

5. The review applicant appeared before the Tribunal on 5 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Maria Belen Delgado De Lugo the visa applicant via telephone and the applicant’s Representative Mr Hugh Wyndham. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her adult daughter and son in law. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)).

    Background

11. The visa applicant is a 67 year old female who is a national of Venezuela. The applicant wishes to visit her daughter who is an Australian citizen, her son in law and she also has friends in Sydney. The planned arrival date was 15 September 2017 for an initial period of three to five months.

12. The application was refused. The decision outlines the delegates concerns which were all centred on the current political and economic situation in Venezuela. The delegate did not accept that the applicant genuinely intended to stay temporarily in Australia for the purposes for which the visa is granted. Regard was given to the whether they have substantially complied with conditions on their last held visas, whether there is an intention to comply with conditions on the visa which is the subject of this review and any other relevant matter.

13. The applicant has travelled to Australia before and has had three previous visitors visas approved. One in October 2009, June 2011 and February 2013. In addition the applicant holds a USA B1/B2 visa which was issued on 10 May 2012 and expires on 8 May 2022.

14. Aside from the three previous trips to Australia the applicant has travelled outside of Venezuela on the following occasions:

    ·2016  Bogotá Columbia in January and October

    ·2017 Bogotá Colombia February July and October

    ·2017 USA Boston, Miami and Boca Raton November

    ·2017 Madrid Spain December

    ·2018 Bogotá Colombia February

    ·2018 Punta Canta Dominican Republic April

15. 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)).

16. The applicants movement records, and evidence provided to the Tribunal indicate that she has travelled to Australia three times, travelled to Colombia three times, once to the USA, Dominican Republic and Spain. There is a demonstrated history of travel and compliance with visa conditions. The Tribunal considers if the applicant intended to migrate to Australia she would have done so earlier.

17. The Tribunal also places weight in the applicant’s favour because the Tribunal has no information that the applicant did anything other than adhere to the conditions on her visas and returned to Venezuela prior to the expiry of her visa. The Tribunal considers that if the applicant was paving the way to permanent residency in Australia by changing their visa status on shore, she could have done this on three previous occasions.

18. 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.

19. The Tribunal notes that the applicant has another daughter and grandchild in Bogotá Columbia and frequently travels there to visit. The Tribunal gives weight to this as the applicant in her oral testimony stated she loved her grandchild and visits often. Further, the applicant’s husband who is older and does not trave as much will remain in Venezuela and is not coming to Australia and the applicant has a dog she assured the Tribunal she would never leave. This provides further incentive for the applicant to adhere to the visa conditions and return home.

20. The applicant has been retired since 2011 and has money to support herself whilst in Australia. She will be staying with her daughter and son in law and the Tribunal also received a letter of support from her son in laws family. The applicant also has friends in Sydney who also support her application and visit to Australia. The Tribunal is satisfied that the applicant will not work whilst in Australia and that she will adhere to her visa conditions as she has done in the past.

21. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal has found that there is nothing to indicate the applicant or anyone in her family has an adverse immigration history which is relevant to her genuine intention to stay in Australia for the purpose for which the visa is granted.

22. The Tribunal did weigh up the current political and economic situation in Venezuela. With regard to country information the situation in Venezuela is grim. 2.3 million People have left Venezuela since 2014 as the economy crumbles. [1] However, the Tribunal was given bank statements from accounts both in Venezuela and the USA which show more than an adequate amount of funds for a visit to Australia. The applicant is affluent and lives in a gated community. Whilst the Tribunal does understand that there is adverse country information the applicants past immigration history and compliance combined with the funds the applicant has and the incentive to return home to her husband, dog, daughter and grandchild (in Columbia) outweighs the negative country information.

    [1] >

    Option 1: if satisfied that genuine intention criterion is met

23. 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

24. 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