Ershad (Migration)

[2023] AATA 1173

Ershad (Migration) [2023] AATA 1173 (28 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jamil Hasan Ershad

VISA APPLICANTS:  Ms Nazneen Sultana
Miss Maimuna Tayba
Miss Miftahul Zannat

CASE NUMBER:  2209413

HOME AFFAIRS REFERENCE(S):          BCC2021/2522871

MEMBER:Stephen Conwell

DATE:28 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 28 April 2023 at 1:23pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to depart or remain – adult child and extended family in home country – previous compliant travel to Australia by other family members and to third country by applicant – members of family unit – minor children – intention to comply with conditions – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, 600.231, 600.612

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 26 April 2022 and 27 April 2022, respectively to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The primary visa applicant applied for the visas on 29 December 2021. The other visa applicants are minors and daughters of the primary visa applicant. They applied for their visas on 12 January 2022. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 (Cth) (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 visas, on the basis that the visa applicants (the applicants) did not meet cl.600.211 because the delegate was not satisfied the applicants genuinely intend to stay temporarily in Australia. 

5. The review applicant (sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. Having regard to the decision record, the information provided to the Department and the information, submissions and documents provided to the Tribunal, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.

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 primary visa applicant seeks the visa for the purposes of visiting her brother (the sponsor and an Australian citizen). This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

   Cl.600.211(a)

10. In considering whether an 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)), however because the applicant has not previously travelled to Australia, this is not relevant.

11. The Tribunal must also consider whether the 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.

12. The Tribunal has considered the personal circumstances of the primary visa applicant who was born in 1976 and is 46 years of age. She has three daughters, all of whom were to accompany her on this proposed visit to Australia. Due to administrative and financial issues in having to add her eldest daughter to this application, the sponsor has decided to pursue this review only in respect of herself and her two younger daughters.

13. The Tribunal has regard to the sponsor written statement of 28 June 2022 which offers more information and greater context than what was perhaps available to the delegate. He states:

    ·the primary visa applicant lives in her hometown in Bangladesh with two other sisters and her extended family;

    ·her eldest daughter, who was initially to accompany her on this proposed visit, will now remain in Bangladesh;

    ·the sponsor’s parents have travelled to Australia previously and his mother currently holds a ‘multiple entry’ visa;

    ·the sponsor had also sponsored the visit of another of his sisters and her family in 2010;

    ·these previous visits to Australia by the sponsor’s family have all occurred with no evidence of any breach of visa conditions;

    ·the primary visa applicant travelled from Bangladesh to India on two occasions in 2010 without incident, however these visits are recorded in her previous passport which she had to relinquish when applying for a new one.

14. Although the primary visa applicant has not previously to travelled to Australia, the Tribunal gives positive weight to the sponsor having successfully sponsored other family members on previous visits as noted above. There is no evidence of these previous visitors breaching their visa conditions during their stay. The Tribunal gives positive weight to the fact that the previously sponsored visitors  appear to have substantially complied with their visa conditions during these visits to Australia and that they departed the country within the terms of such conditions. Positive weight is also given to the fact that the primary visa applicant has previously travelled outside of her home country without any evidence of having breached any visa conditions.

15. The Tribunal also finds that the primary visa applicant’s adult daughter and her extended family in Bangladesh provide a strong incentive for her to return to there.  Taking all these matters into account cumulatively, the Tribunal is satisfied that all of the applicants intend to comply with all visa conditions which would accompany the visas. The Tribunal is also satisfied that the applicants genuinely intend to stay temporarily in Australia for the purpose for which the visas are granted.

    Cl.600.211(b)

16. Based on the evidence, the Tribunal is satisfied that the sponsor is able to support the applicants financially and with all other needs during their visit. The Tribunal notes that the primary visa applicant has provided evidence of her bank accounts and assets in Bangladesh. The Tribunal is satisfied that she and the sponsor have the financial means to support all applicants during the proposed visit.

17. The  Tribunal is satisfied that the none of the applicants intend to work, study or train while in Australia.

18. The Tribunal is satisfied the primary visa applicant has significant family ties in Bangladesh (being her adult daughter and extended family) which act as incentive for her to return with the other applicants before the expiration of their visas, should they be granted.

19. The Tribunal accepts that the applicants genuinely intend to comply with the terms of the visas and to depart Australia before they expire.

    Cl.600.211(c)

20. The Tribunal has also considered all other relevant matters (cl.600.211(c)) and finds there is no evidence of other relevant issues in the case. 

21. For the above reasons the Tribunal is satisfied that the applicants genuinely intend to stay temporarily in Australia for the purpose for which the visas are granted and finds that the requirements of cl 600.211 are met.

    DECISION

22. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations.

    Stephen Conwell
    Member