De Souza (Migration)

[2017] AATA 613

De Souza (Migration) [2017] AATA 613 (12 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daran De Souza

CASE NUMBER:  1619245

DIBP REFERENCE(S):  BCC2016/3175093

MEMBER:B. Mericourt

DATE:12 April 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 12 April 2017 at 3:44pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Brazil – Subclass 600 (Visitor) – Tourist stream – Adequate funds – Length of stay to date – Lack of evidence of current financial situation – Not purchased ticket to depart – No adequate funds for remainder of stay – Not genuine temporary entrant

LEGISLATION

Migration Act 1958

, s 65

Migration Regulations 1994

, Schedule 2, cl 600.211, cl 600.212, cl 600.611(3), Conditions 8101 and 8201

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 26 October 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 September 2016. 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 and cl.600.212 which requires the visa applicant to satisfy the Minister that he has adequate funds or access to adequate funds to support himself for the period of his visit.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.212 because the delegate was not satisfied that the applicant had adequate funds or access to adequate funds to support his stay in Australia.

5. The applicant lodged an application for review of the Department’s decision with the Tribunal on 16 November 2016.

6. The applicant appeared before the Tribunal on 12 April 2017 to give evidence and present arguments.

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

   BACKGROUND

8. The applicant was born in 1991 in Brazil and is a citizen of Brazil. He is single and has no dependents. His parents, one brother and one sister reside in Brazil.

9. On 26 August 2014 the applicant was granted a student visa (subclass 572) and he entered Australia on 3 September 2014.  He departed Australia on 13 July 2015.  On 24 July 2015 the applicant was granted a student visa (subclass 573) and he entered Australia on 10 August 2015.  His student visa ceased on 24 September 2016.

10. On 24 September 2016 the applicant lodged an application for a visitor (Tourist) (subclass 600) visa requesting an extended stay until 31 March 2017, stating his reasons as tourism.

11. On 27 September 2016 the Department sent a request by email to the applicant to provide evidence of adequate funds or access to adequate funds to support his stay in Australia.  The applicant did not respond by the required date and on 26 October 2016 the delegate refused to grant the visa.

12. On 15 November 2016 the applicant’s authorised migration representative provided the Tribunal with a submission stating that the applicant genuinely intended to remain in Australia for a short time. He had provided evidence of funds totalling $37,072 to the representative’s office on 12 October 2016. However, at that time the migration representative was on vacation and the office staff mistakenly forwarded the evidence of funds to an incorrect email address. Unfortunately this error resulted in the visa refusal notification of 26 October 2016. This was beyond the applicant’s control.

    TRIBUNAL HEARING

13. The applicant said that he provided his agent with his bank statements which his agent did not provide to the Department. He had adequate funds to support himself during the period of his stay in Australia. He said that he still had “enough” but had not brought further evidence of funds to the Tribunal hearing. The Tribunal put to the applicant that although it was satisfied that there was evidence he had adequate funds at the time of his application, telling the Tribunal that he had enough was not evidence he now had sufficient funds to support himself. The applicant thought his parents would place funds in his account and in a few days he could provide evidence of further funds.

14. The Tribunal put to the applicant that he had originally applied for a visitor visa for six months until 31 March 2017 – a date which had now passed. The applicant said he would still like a visa as he had not been able to enjoy his stay in Australia while he waited for his Tribunal hearing to be scheduled. He has only visited Melbourne, Sydney and Western Australia.

15. The Tribunal put to the applicant that he had been in Australia for nearly three years with only a one month break in July/August 2015. Based on the length of his stay to date, the Tribunal had concerns about whether his stated intention to only stay temporarily was genuine.

16. The applicant said that most of the time he had been in Australia he had been a student. He had studied physiotherapy in Brazil and gained his qualification there but overseas qualifications were looked on favourably for future employment.   He had therefore come to Australia to study English, Business and Leadership management. He eventually hopes to be involved in his father’s business and perhaps run his own business.

17. The Tribunal put to the applicant that in fact he had not been a student for the past 9 months and had had an opportunity to be a tourist for that time. The applicant said he would like at least another month to be a tourist in Australia. The Tribunal asked him if he had bought a return ticket to Brazil given in his original application he stated that he only wanted to stay until 31 March 2017. He said he had not yet bought a ticket to depart Australia. He thought he would like to stay a while long and then return to Brazil after a two week break in Asia on the way home.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

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

20. 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)).

21. There is no evidence before the Tribunal that the applicant has not complied with the conditions of his last substantive (student) visa and therefore the Tribunal is satisfied that the applicant has no adverse migration history.

22. 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(3)):

    ·8101 – must not work in Australia

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

23. Based on the applicant’s length of stay in Australia to date (two years and 8 months with a one month break), the lack of any evidence relating to his current financial situation, and the fact that he has not yet purchased a ticket to depart Australia, the Tribunal is not satisfied that the applicant will not work in Australia during the period of his visit. Nor is the Tribunal satisfied that the applicant has a genuine intention to only stay temporarily in Australia.

24. 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.

25. Although the Tribunal is satisfied that the visa applicant had access to adequate funds at the time of his application in September 2016, based on the lack of evidence before it now in April 2017, the Tribunal is not satisfied that the applicant has adequate funds or access to adequate funds to support himself for the period of his proposed visit and therefore he does not satisfy cl.600.212. 

    DECISION

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

    B. Mericourt
    Member