Hintz (Migration)

[2022] AATA 396

Hintz (Migration) [2022] AATA 396 (14 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Cassandra April Hintz

CASE NUMBER:  2015804

HOME AFFAIRS REFERENCE(S):          BCC2020/1648709

MEMBER:Naomi Schmitz

DATE:14 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 14 February 2022 at 1:49pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – written request to withdraw application for review but withdrawal form not completed – no updated evidence about incentives to remain or return provided – no appearance at hearing – applicant left Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A(5)
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 6 October 2020 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 1 May 2020. 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 visa 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 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 that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.  

5. On 8 January 2022 the visa applicant’s husband wrote to the Tribunal requesting to withdraw his and the visa applicant’s application for review. On 13 January 2022 the Tribunal sent a letter to the visa applicant enclosing a withdrawal form for completion. The same correspondence was also sent to her husband. There was no response by the visa applicant. On 20 January 2022 and 24 January 2022 the Tribunal sent follow up emails requesting that the visa applicant complete the withdrawal forms to which there was no response.

6. The Tribunal therefore proceeded to list the matter for hearing. The visa applicant was invited to appear before the Tribunal and give oral evidence and present arguments. The visa applicant did not appear. The Tribunal did not receive any correspondence from the visa applicant regarding his non-attendance through to the date of this decision.

7. On 28 January 2022 a hearing invitation was sent via email to the visa applicant. On 7, 10 and 11 February 2022, the Tribunal sent SMS text messages to the visa applicant’s mobile phone reminding her of the hearing date. There was no indication that the above-named SMS’s were unsuccessful, save for the SMS sent on 10 February 2022 which returned a failure of delivery notification. On 7 February 2022 the Tribunal also attempted to conduct a hearing test dial via Microsoft Teams test which was unsuccessful.

8. The email address and mobile telephone number used by the Tribunal were the contact details supplied by the visa applicant when she applied to appeal the Department’s decision at the Tribunal. The Tribunal’s records indicate that the visa applicant did not lodge a change to her contact details since filing her application for review.

9. Having reviewed the Tribunal file, the Tribunal is satisfied that the visa applicant was properly invited to a hearing in accordance with s.379A(5), using the contact information provided by the visa applicant. Further, from reviewing the chronology of communications, I am satisfied sufficient efforts were made to contact the visa applicant.

10. In these circumstances, and pursuant to s.362B of the Act, this matter has therefore been determined on the evidence available to the Tribunal and the Tribunal has proceeded to make a decision on the review without taking any further action to allow or enable the visa applicant to appear before it. [1]

    [1] Section 362B [Part 5] Migration Act 1958 (Cth)

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. The visa applicant is a 28-year-old citizen of the United States of America. At the time of application the visa applicant sought a further stay of up to 12 months until 21 January 2021.

14. Travel movements disclose that the visa applicant is currently offshore, departing Australia on 7 July 2021 with her husband. As the visa applicant did not attend the hearing and give oral evidence and did not submit any documentation prior to the hearing, the Tribunal has little evidence to discern what the visa applicant’s intention was when applying for the visa.

15. The Tribunal has therefore considered the contents of her visa application which state the visa applicant was seeking the visa due to the following:

    Due to COVID-19 its not possible to leave the country and return to the US. I have an ETA visa which does not expire until October 2020. I originally wanted to return to the US in May for a few months then come back to Australia. My husband is with me.

16. Accordingly, as this is not related to business or medical treatment, this is a purpose for which a visa in the Tourist stream may be granted: cl 600.221.

17. 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)).

18. Travel movement records obtained by the Tribunal show that the visa applicant has been granted two previous visitor visas and one working holiday visa and been compliant. The Tribunal places some weight on the visa applicant’s substantial compliance with the conditions of their last substantive visa. (cl.600.211(a).

19. 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.

20. The Tribunal accepts that the visa applicant does not intend to study, given her declaration in her visa application that she would not undertake any studies. However, the Tribunal is not satisfied that the visa applicant intends to comply with condition 8101 due to the long duration of her proposed stay and the fact that there is no financial evidence before the Tribunal that the visa applicant has sufficient funds to support herself during her 12 month stay. The visa applicant claimed to be financially dependent on her husband, but did not provide any recent financial evidence in support. Accordingly, the Tribunal is not satisfied that the visa applicant will comply with condition 8101.

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

22. Although the visa applicant claims to have previously travelled to Spain, there is no independent evidence before the Tribunal to corroborate this travel. Consequently, there is no demonstrated compliance or non-compliance with previous visa conditions from which the Tribunal can place weight on it as evidence of an intention of a genuine temporary stay in Australia.

23. There is no updated evidence before the Tribunal as to the visa applicant’s incentives to return to the United States. There is no updated evidence as to her employment status, finances, property, assets, family, commitments and activities in the United States.

24. The Tribunal has considered all matters carefully. The visa applicant has a valid reason to visit Australia, namely, a purpose that is not related to business or medical treatment. The Tribunal places some weight on the fact that the visa applicant has complied substantially with her previous visitor visas.

25. However, given the limited financial evidence submitted and the length of stay, the Tribunal is of the view that the visa applicant does not have adequate financial resources to support. The visa applicant provided to the Department a screenshot of an account statement which she alleged belonged to her husband, however the statement did not show the identity of the account holder. The Tribunal therefore cannot be satisfied who the account belongs to nor can it be satisfied that the visa applicant has access to these funds The Tribunal is therefore not satisfied that she would comply with condition 8101.

26. Furthermore, there is no evidence as to the visa applicant’s current employment status, property ownership, finances, other significant assets, personal circumstances and family situation which would provide a sufficient incentive to return after her proposed stay in Australia.

27. After considering the evidence provided and for the above reasons 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

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

    Naomi Schmitz
    Member