Flores Yanzon (Migration)

[2024] AATA 3138

Flores Yanzon (Migration) [2024] AATA 3138 (12 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Elida Yanina Flores Yanzon

CASE NUMBER:  2308170

HOME AFFAIRS REFERENCE(S):          BCC2023/1992307

MEMBER:Rachel Da Costa

DATE:12 August 2024

PLACE OF DECISION:  Sydney

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 600.212 of Schedule 2 to the Regulations.

Statement made on 12 August 2024 at 11:40am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – adequate means to support oneself – living expenses in Australia met by partner – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.212

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 Home Affairs on 22 May 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 28 March 2023. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 600.212, which requires the visa applicant to satisfy the Minister that the visa applicant has adequate means to support himself or herself, or access to adequate means to support himself or herself, during their intended stay in Australia.

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 visa applicant has adequate means or access to adequate means to support herself in Australia.

5. The applicant appeared before the Tribunal on 16 July 2024 to give evidence and present arguments. The hearing was conducted using the Microsoft Teams videoconference platform. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl 600.212 is met, which requires the Tribunal to be satisfied that the visa applicant has:

   (a)  adequate means to support himself or herself; or

   (b)  access to adequate means to support himself or herself;

   during the period of the applicant’s intended stay in Australia.

8. In the present case, the visa applicant seeks the visa for the purposes of extending her stay to experience Australian life and culture. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

9. In considering whether the visa applicant has adequate means to support herself, or access to adequate means to support herself, during the period of her intended stay in Australia, which is up to 12 months to November 2023, the Tribunal has considered all the relevant evidence before it.

10. In her Visitor visa application form, the visa applicant says that her stay in Australia will be self-funded by $6000 in cash and credit cards and that she is employed by the “Docente de Lengua Extranjera Ingles Nivel Medio o Ciclo Basico de educacion Secundaria” in Argentina, which is the visa applicant’s country of citizenship.

11. The visa applicant provided the following documentary evidence to the Department (in Spanish with certified English translations where necessary):

    ·     Letter from her employer in Argentina, the Oxford English Institute, dated 10 May 2023 confirming that she works as an English teacher and that she is continuing to teach courses in Argentina online with a weekly load of 12 hours per week;

    ·     Supporting documents from her employer in Argentina confirming her ongoing employment and that she has been employed in her role for over 4 years;

    ·     ANZ Bank account details and a screenshot showing a balance of $2227 at 12 May 2023;

    ·     Undated photograph showing cash in Australian and United States currency;

    ·     Undated photograph of various credit cards in the visa applicant’s name;

    ·     Letter from the visa applicant confirming her employment and education background in Argentina, she has saved for a long time for her trip to Australia, she is enjoying using her English and having pleasant experiences;

    ·     Other untranslated documents.

12. After the Tribunal hearing, the visa applicant provided the following additional documentary evidence to the Tribunal (in Spanish with certified English translations where necessary):

    ·     Birth certificate of her son born 21 December 2021 in Argentina, showing the visa applicant as the mother and Miguel Alejandro Figueroa Somerville as the father;

    ·     Commonwealth Bank account statement dated 29 July 2024 in the name of Mr Somerville showing a balance of $8,428.24;

    ·     Letter dated 29 July 2024, in which the visa applicant states that she is currently staying in Australia with her partner, Mr Somerville, who has a Student visa which is valid until July 2025 and their son, who has a valid Visitor visa. She states that she and her son and financially dependent on Mr Somerville, who covers her living expenses. She wants to be able to remain in Australia with her son and partner while her partner completes his studies. Since arriving in Australia, she has complied with all her visa conditions.

13. In the Tribunal hearing, the visa applicant explained her situation to be as follows. She is currently staying in Australia with her partner and son and they share their rented accommodation with another woman. The visa applicant’s partner, Mr Somerville, is studying Business. He has work rights and works for a tree-lopping company and also does some Uber Eats deliveries. The visa applicant is a trained primary teacher. She continues to work a few hours a week remotely for her employer in Argentina but mainly, she looks after her young son. The money she earns from her own employment goes towards paying for expenses back in Argentina such as her house and car and taxes. She is not employed in Australia.

14. Mr Somerville came to Australia on a Student visa around seven months before the visa applicant and her son arrived. The visa applicant came to Australia with her son on a Visitor visa so they could spend time with Mr Somerville and travel and experience Australia. The visa applicant’s visa expired in March 2023 and she has applied for a new Visitor visa to extend her stay. She intends to return to Argentina with her son before December 2024 because he has to start pre-school in early 2025. Mr Somerville will complete his studies and then return to Argentina in mid-2025. She does not intend to stay in Australia long-term.

15. The visa applicant explained that in Australia they lead a relatively simple life. Mr Somerville supports her living expenses in Australia with his income. She has saved enough money for their flights to return to Argentina when they are ready.

16. The Tribunal has considered the visa applicant’s oral and documentary evidence. The Tribunal found her to be an honest witness. Based on all the evidence, the Tribunal is satisfied that the visa applicant’s living expenses in Australia are being met by her partner, Mr Somerville, with whom she lives and that this will continue to be the case during the period of her intended stay in Australia.

17. Therefore, based on the evidence before it, the Tribunal is satisfied that the visa applicant has adequate means to support herself, or access to adequate means to support herself, during the period of her intended stay in Australia.

    Conclusion

18. For the above reasons the Tribunal is satisfied that the visa applicant meets the requirements in cl 600.212.

    DECISION

19. 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 600.212 of Schedule 2 to the Regulations.

    Rachel Da Costa
    Member