De Silva (Migration)

[2020] AATA 4575

De Silva (Migration) [2020] AATA 4575 (29 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Graham Keith De Silva

VISA APPLICANT:  Ms Jessica Danielle De Silva

CASE NUMBER:  1825468

HOME AFFAIRS REFERENCE(S):          CLD2018/47085299, N18/01176925

MEMBER:K. Chapman

DATE:29 October 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 29 October 2020 at 6:23pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – passage of time – applicant now not visiting – no current evidence of intentions –decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(b)

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 15 August 2018 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 8 August 2018. 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 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 they genuinely intend 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 she was assessed as not genuinely intending to stay temporarily in Australia. On 1 September 2018, the review applicant (the father of the visa applicant) applied to the Tribunal for review of the visa refusal decision. He provided a copy of the delegate’s decision to the Tribunal with his application for review. The review applicant also submitted further written material, including letters of support, details of relatives and utility accounts. The Tribunal has duly considered all submitted material.

5. On 30 September 2020, the review applicant was invited to appear by telephone before the Tribunal to give evidence and present arguments. However, in response, he informed the Tribunal that the Subclass 600 visa was sought in order for the visa applicant to visit Australia during the Christmas period in 2018 and given the effluxion of time she would not now visit him. Further, the review applicant confirmed to the Tribunal that he did not wish to attend a review hearing, nor did he wish to withdraw his application for review. He expressed his displeasure at the length of the review process and the inability for him to receive a refund of the application fee (noting there is no power for the Tribunal to grant such a refund in the circumstances pertaining to this review).

6. Following careful consideration, the Tribunal is satisfied that the review applicant consents to it deciding the review without him appearing before it, pursuant to subsection 360(2)(b) of the Act. Accordingly, the Tribunal has proceeded to make its decision upon the documentary material alone.

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

   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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the visa applicant was subject; whether the visa 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 purpose of visiting her father. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)). There is no evidence before the Tribunal to suggest that the visa applicant has not complied substantially with the relevant conditions.

11. 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):

    ·8101 – must not work in Australia; and

    ·8201 – must not engage in study or training in Australia for more than 3 months.

12. Discretionary visa conditions may also be imposed, however, given the delegate did not refer to these in the primary decision the Tribunal proceeds upon the basis they would not have been. There is no evidence before the Tribunal to suggest that the visa applicant does not intend to comply with the above conditions.

13. The Tribunal has also considered all other relevant matters as required by cl.600.211(c). It is apparent that the review applicant does not now intend for the visa applicant to visit him in Australia, given the passage of time since the visa application was lodged. Furthermore, the Tribunal notes that there is no contemporary evidence available to it suggesting that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Whilst having paid due regard to the earlier documentary evidence submitted by the review applicant in support of his application for review, the Tribunal notes that it is of limited probative value with respect to the current circumstances of the visa applicant. Additionally, given that the review applicant did not wish to participate in a review hearing, the Tribunal has a dearth of contemporary evidence before it regarding these circumstances at the time of this decision.

14. Therefore, on balance, the Tribunal cannot presently be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal so finds.

15. For the above reasons, the Tribunal is not 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 not met.

    DECISION

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

    K. Chapman
    Member