Hidayattullah (Migration)

[2020] AATA 4888

Hidayattullah (Migration) [2020] AATA 4888 (6 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT\:  Ms Sarjana Azmi Hidayattullah

VISA APPLICANT:  Mr Yelayar Shamsudeen Hidayattullah

CASE NUMBER:  1930855

VISA APPLICANT:  Mrs Nasira Begam Hidayattullah

CASE NUMBER:  1930859

HOME AFFAIRS REFERENCE(S):          BCC2019/3822842; BCC29019/3822967

MEMBER:Luke Hardy

DATE:6 November 2020

PLACE OF DECISION:  Sydney

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

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 06 November 2020 at 2:02pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary stay – previous overstay and quick departure after realising breach – applications for carer visas in progress – intention to stay long-term or permanently on temporary visa, or to not jeopardise carer visa application – review applicant’s and son’s health – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 4, criterion 4014

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

2. The visa applicants applied for the visas on 2 August 2019. 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 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 (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 did not meet cl.600.211. This was because the delegate was not satisfied that the visa applicants would comply with the visas, visit Australia only temporarily and depart before the visas were due to expire.

5. The review applicant then sought merits review by this Tribunal.

6. The applicants appeared before the Tribunal on 6 November 2020. The Tribunal hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by telephone. 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 all of the applicants. 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. There were a few moments during which audio artefacts were detectable but these were brief and insignificant.  The telephone line to the two visa applicants in Singapore dropped out at one stage but was quickly reconnected. Efforts were made to summarise the discussion that might not have been heard by the visa applicants during the short disconnection. Overall, the Tribunal is satisfied that the applicants were all given a fair opportunity to give evidence and present arguments.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Indian)-English medium.

8. For the following reasons, the Tribunal has concluded that the two matters should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in these cases is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicants have complied substantially with the conditions to which their last substantive visas, or any subsequent bridging visas, held by the applicants were subject; whether the applicants intend to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

10. In the present case, the visa applicants seek the visas for the purposes of a family visit, and to give social and emotional support to the review applicant during and after a procedure to remedy the effects of a possible aneurism that she suffered in 2019. They also wish to help look after the review applicant’s son who has special health needs for the period of the review applicant’s recovery. These are purposes for which a visa in the Sponsored Family stream may be granted: cl.600.231. The review applicant has submitted evidence to the effect that her treatment is still pending.

11. 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)).

12. In these cases, both of the visa applicants are citizens of Singapore where they evidently live comfortably in semi-retirement. Both have visited Australia on visitor visas several times in the past, Ms Nasira around seven times and Mr Yelayar around five. There were breaches in compliance when, on 15 December 2019, the visa applicants departed Australia over 28 days after their visitor visas expired. They were invited by the delegate to explain if there were any compelling circumstances and apparently failed to provide sufficient satisfactory information to the delegate who found that they did not overcome the Public Interest Criterion 4014 risk factor. In both instances, however, there were evidently compelling health circumstances affecting the review applicant and her son and these were discussed more satisfactorily, in my view, at the Tribunal hearing. In departing Australia, albeit late, the visa applicants showed what I consider to be a form of substantive compliance with their visas in that they sought quickly to remedy their error, by departing Australia, once they realised it had been committed.

13. The delegate refused their last, current applications, apparently on the basis of non-compliance. I have a different view in the matter, accepting that the review and visa applicants misunderstood information relating to the visas in ways that they would not repeat in the future.

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 this case, the visa applicants are currently awaiting the outcome of carer visa applications. These would potentially put the visa applicants on a pathway to long-term or even permanent stay in Australia. This information can be looked at through alternate optics: one assuming that this is evidence of the visa applicants wanting overall to stay permanently in Australia, seemingly undermining stated intentions to visit Australia only temporarily; and the other as information indicating the great risk to the success of the carer visa applications that the visa applicants would face were they to default on the visitor visas for which they are applying. Having listened to all of the applicants at the Tribunal hearing, taking account of evidence regarding finances and provision of accommodation in Australia during the visit, I am satisfied that, in this case, the visa applicants would not want to jeopardise future travel to Australia.

16. As discussed in paragraph 12 above, there is also the PIC 4014 risk factor. However, in view of compelling arguments as to compassionate circumstances involving the visa applicants’ daughter and grandson, I find that the visa applicants are not affected by the PIC 4014 risk factor.

17. I have also considered all other relevant matters (cl.600.211(c)). Insert discussion of other matters relevant to genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.

18. For the above reasons the Tribunal is 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 met.

    DECISION

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

    ·cl.600.211 of Schedule 2 to the Regulations.

    Luke Hardy
    Member