Gaievskyi (Migration)

[2022] AATA 281

Gaievskyi (Migration) [2022] AATA 281 (24 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Maksym Gaievskyi

VISA APPLICANT:  Mr Leonid Haievskyi

CASE NUMBER:  1934648

HOME AFFAIRS REFERENCE(S):          BCC2019/5775401

MEMBER:Moira Brophy

DATE:24 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 24 January 2022 at 9:47am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – first visit to their only grandchild – previous compliant visits to other countries – review applicant’s migration history – jeopardising applications for permanent residence – lesser family ties in Ukraine – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 7 December 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth).

2. The visa applicant applied for the visa on 14 November 2019. 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 (Cth). 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 the delegate was not satisfied the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. The sponsor (the review applicant) seeks review of the delegate’s decision.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant gave evidence at a telephone hearing before the Tribunal on 14 December 2021. The Tribunal also received oral evidence from the visa applicant Mr Leonid Haievskyi and his wife Ms Valentyne Haievska who had a separate application before the Tribunal (1934651). The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

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

   BACKGROUND

8. The visa applicant, Mr Leonid Haievskyi, is a 56-year-old citizen of Ukraine. He is married to Ms Valentyne Haievska.  They have one child together, a son. They have never been to Australia. In his application for a Visitor visa, he stated that he is employed and he  wishes to travel to Australia with his wife for a period of up to three months. The review applicant, who is the son of the applicant and his wife applied for Contributory Parent visas for his parents to migrate to Australia on 1 April 2020.

9. The review applicant, Mr Maksym Gaievskyi is the son of the visa applicant. He is an Australian Permanent Resident. He arrived in Australia on 24 June 2012 on a Tourist visa. He applied for [a permanent visa] on 21 August 2012. That application was refused and he returned to Ukraine in 2014. He next arrived in Australia on 24 February 2015 on a Subclass 309 visa sponsored by his then partner. The relationship broke down and Mr Gaievskyi was granted a series of Bridging visas, he left Australia on 2 July 2017 and returned on 13 March 2018 on a Subclass 309 visa, sponsored by his present wife and granted on 26 February 2018. His son was born on 12 December 2017. On 26 October 2019 he was granted a 100 Partner visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

12. 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)).

13. The review applicant told the Tribunal the visa applicant had previously travelled to the United Kingdom on two occasions in 2003 and 2010 to visit his sister who lives there. He has also travelled to Israel and Turkey. On all occasions he has complied with the terms of the visa granted. He has not been to Australia.

14. 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.

15. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given by the review applicant as to why the visa applicant was seeking to come to Australia to visit him and his family. The review applicant said his father had not been to Australia to see him. His father has not met his wife and he had not met his only grandson. The Tribunal accepts it is the intention of the visa applicant to visit his son and his family in Australia.

16. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

17. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

18. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of her proposed stay in Australia. The review applicant gave evidence that his father and mother had not previously been to visit him in Australia. He stated he wanted to spend time with his parents and he wanted his wife and son to spend time with them.

19. The review applicant gave evidence that the visa applicant wants to come to Australia for one month maximum. He said his father feels a great sense of responsibility to his mother who lives with him and he would not leave her for a longer period.

20. The Tribunal asked the review applicant what incentives the visa applicant had to return to Ukraine at the end of his permitted stay in Australia.

21. The review applicant responded that the incentive of his parents to return to Ukraine are their fear of jeopardising their applications for permanent residence in Australia and the responsibility to the elderly mother of the applicant who lives with them. He said as well as that they had their employment and their property in Ukraine. When asked what would happen if they come here and change their mind and do not want to return to Ukraine, the review applicant responded that the visa applicants feel a great sense of responsibility to the applicant’s mother and they would not want an uncertain future if they were to overstay their visa. The review applicant said that would draw them back.

22. The Tribunal has considered the evidence given by the review applicant. He is missing his parents and wants them to meet his wife and child and form a relationship with them. The review applicant has worked very hard to make a new life in Australia since he came here and he wants to show his parents his new country. The review applicant stated that the visa applicant is law abiding and that all the members of the review applicant’s family are also law abiding as was evidenced by the fact that while he had previously pursued many options to find a pathway to permanent residence in Australia he had not been here without a visa at any time. The review applicant said it was important his parents were able to come and visit him and he understood that could only happen if they complied with the conditions of any visa they were granted.

23. The Tribunal has also considered the evidence of the visa applicant in regard to the instability in Ukraine. At the time of hearing the applicant told the Tribunal that the area he lived in was not affected by the instability in Ukraine as he lived in the South West and the problems were on the Eastern border.

24. The review applicant stated that if the Department requires a security bond, he was prepared to lodge a bond. He had ready access to funds to be able to do this.

    Findings

25. The Tribunal makes the following findings based on the evidence of the review applicant and the visa applicant.

26. Overall, the Tribunal has formed the view that the visa applicant and his wife have strong reasons to remain in Australia if they travel as a couple. Their only child is living here with their only grandchild. While they would have the incentive of the visa applicant’s mother remaining in Ukraine, they would know she was being well cared for if they were to take the option of staying in Australia as she has a niece in Ukraine. They do not have any other family members in Ukraine. The Tribunal finds the family ties in Australia outweigh those in Ukraine.

27. The Tribunal has concerns the instability generally in Ukraine would provide an incentive to remain in Australia. The employment of the visa applicant and his property in Ukraine would not provide an incentive to return as his property and skills are transferable.

28. While the Tribunal acknowledges the visa applicant’s past compliance with visa conditions the Tribunal was mindful that when he travelled to the UK to visit his sister he travelled without his wife. The presence of a close family member in Ukraine other than his mother would provide an incentive for him to return. If both he and his wife were able to travel together that incentive would be removed.

29. Overall the Tribunal is not satisfied that the visa applicants intend to comply with the conditions to which their visas would be granted if they both were to travel to Australia. In particular, the Tribunal is not satisfied that they would comply with conditions 8503 and 8531.

30. 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

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

    Moira Brophy
    Member