Hanyani (Migration)

[2020] AATA 5874

Hanyani (Migration) [2020] AATA 5874 (16 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lloyd Hanyani

CASE NUMBER:  1827873

HOME AFFAIRS REFERENCE(S):          BCC2018/3233364

MEMBER:Roslyn Smidt

DATE:16 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 16 December 2020 at 2:08 pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s plan for medical treatment – attending a family graduation ceremony – applicant exploring treatment options only – no exceptional circumstances – travel plans delayed by coronavirus pandemic – plans to visit family – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.215, 600.221, 600.222, 600.611

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 19 September 2018 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 27 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 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the visa applicant to satisfy the Minister that they genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa because the applicant’s stated reason for wishing to remain in Australia was for medical treatment. Clause 600.221 in Schedule 2 of the Migration Regulations requires that an applicant for a Subclass 600 visa intends to visit Australia or remain in Australia for a purpose that is not related to business or medical treatment.

5. The applicant appeared before the Tribunal on 10 December 2020 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   BACKGROUND

7. The applicant arrived in Australia on on 27 June 2018 on a subclass 600 (tourist stream) visa which remained valid until 27 September 2018. On 27 August 2018 he lodged an application for a further subclass 600 visa, stating that he wished to remain in Australia until 27 August 2019 for medical treatment as he was suffering chronic pain as a result of a hernia operation at a hospital outside Australia. No further reasons were provided.

8. In his application for review lodged on 24 September 2018 the applicant said that his migration agent had made a mistake when completing his visa application. He said that the reason he applied for a visa to remain in Australia was so he could continue his travels, attend his niece’s graduation ceremony scheduled for December 2018 and to make inquiries about the possibility of returning to Australia at some future time for medical treatment. He said that it was never his intention to remain in Australia to seek medical treatment. He said that he intended to return to his homeland at the expiration of his visa as his children and the rest of his family were expecting him to return home. His representative stated that these submissions were correct.

9. The applicant attended a hearing on 9 and 10 December 2020. He repeated that submissions made in his application for review regarding the claimed mistake on his initial application. His representative made similar submissions.

10. I advised the applicant that even if I accept that there was an error in his visa application there were other issues which needed to be addressed.  I noted that the extension which he had requested would have resulted in a stay exceeding twelve months and in order for a visitor visa which would result in authorising a stay of more than 12 consecutive months as the holder of a visitor to be granted there had to be exceptional circumstances and the reasons he had given did not appear to be exceptional [Clause 600.215].  I also noted that he had originally stated that he wished to remain in Australia until 27 August 2019, but he had remained beyond that date. I advised him that one of the conditions for a visitor visa was that the holder genuinely intended to remain in Australia for a temporary period and the fact that he had remained in Australia longer than the period originally requested suggested that this was not his intention.

11. The applicant said that his travel plans had been delayed by the coronavirus pandemic, for example he had planned to attend the graduation of a cousin in August 2020, but this had been delayed until sometime in 2021. He also wanted to visit family members who lived outside Victoria which had not been possible due to the pandemic. In addition he said that he had not departed on or before 27 August 2019 because he was waiting for the outcome his application for review. His representative submitted that the applicant had done no wrong remaining in Australia while awaiting finalisation of his case as he was not responsible for the long delay in finalising the review.

12. I asked that applicant how he had supported himself during his extended stay in Australia. He said that he had not worked and had been supported by members of his family. He said that they would continue to support him for the remainder of his stay.

13. At the end of the hearing on 10 December 2020 I asked the applicant when he intended to leave Australia. He said that he been waiting for the finalisation of his review, but he was now ready leave.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

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

16. 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 specific evidence before the Tribunal which indicates that the applicant failed to comply with the conditions on visas which he has held while in Australia.

17. 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.

18. There is no evidence before the Tribunal which suggests that the applicant intends to study in Australia. However, according to his evidence he intends to rely entirely on relatives in Australia for financial support. No evidence has been provided in support of this claim. Nor is there any evidence which suggests that the applicant has independent or other means of support. In these circumstances I am not satisfied that he will comply with condition 8101.

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

20. The applicant arrived in Australia 27 June 2018 on a visitor visa. Prior to the expiry of this visa he applied to remain in Australia for an additional 12 months to receive treatment for a chronic illness. In his application for review he claimed that this was a mistake and said that he wished to extend his stay in order to visit other parts of Australia and spend time with family. No supporting evidence such as travel itineraries or invitations or letters of support from the applicant’s relatives in Australia has been provided.  While it may be that the applicant wishes to continue travelling in Australia, I am not satisfied that he planned to visit family members or attend family events.

21. In any event, whatever the reasons for the applicant’s wish to remain in Australia until August 2019, he failed to depart on or before that date. He claims that he remained in Australia after August 2019 because his plans were disrupted by the corona virus pandemic and because he was waiting for the outcome of his application for review. The corona virus pandemic had not begun in August 2019 was clearly not a reason for him to remain in Australia at that time. While I acknowledge that the applicant held a bridging visa and was entitled to await the outcome of his application for review, he was not obliged to do so. I find his failure to leave within the timeframe originally requested a strong indication that he wishes to remain in Australia and does not intend to remain in the country temporarily. In these circumstances and in the absence of any evidence regarding claimed travel plans or plans to visit family I am not satisfied that the he genuinely intends to stay temporarily in Australia for the purpose of travelling or visiting family.

22. In reaching this conclusion I have noted that applicant’s evidence at the hearing on 10 December 2020 that he was now ready to leave Australia. However, this is at odds with his evidence on 9 December 2020 when he stated that he wished to attend a relative’s graduation in 2021 and wanted to visit family members who lived outside Victoria because he this not been possible previously due to the pandemic.  I do not accept the applicant genuinely intends to leave Australia at the present time.

23. For the above reasons I am not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and I find that the requirements of cl 600.211 are not met.

    DECISION

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

    Roslyn Smidt
    Member