Jimenez Garcia (Migration)

[2024] AATA 1458

Jimenez Garcia (Migration) [2024] AATA 1458 (16 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Wendy Jhised Jimenez Garcia

VISA APPLICANTS:  Mr Humberto Jimenez Hincapie
Mrs Maribel Carvajal Munoz

CASE NUMBER:  2306433

HOME AFFAIRS REFERENCE(S):          BCC2023/1220362

MEMBER:Stephen Witts

DATE:16 May 2024

PLACE OF DECISION:  Melbourne

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

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 16 May 2024 at 11:38am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – father and step-mother – genuine temporary entrant and compliance with conditions – property and non-travelling children in home country, and no other relatives in Australia – compliant travel to other countries – possibility of father travelling by himself – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 1 May 2023 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 18 February 2023. 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 applicants applied for the visas 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) (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 because the delegate was not satisfied that the applicants intended a genuine temporary visit to Australia.

5. The review applicant appeared before the Tribunal on 16 May 2024 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicants (the applicants).

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicants seek the visas 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.

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. The Tribunal notes that there is no evidence before it any substantive visa breaches by the applicants.

13. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

14. The Tribunal notes that it has been provided with a copy of the relevant delegates decision records dated 20 March 2023 and 1 May 2023.

15. According to the delegate the applicants declared family members who will remain in their home country, their dependent children, but was not satisfied that despite owning property in their home country of Colombia, that they intended a genuine temporary visit to Australia.

16. At the hearing the Tribunal had a discussion with the applicants regarding the application.

17. The primary applicant stated that he has visited Australia on one other occasion in 2014 as a visitor coming by himself for his daughter’s wedding. He stated that he also made a combined application to visit Australia with his wife, the secondary applicant, in 2019, but that this was rejected. He stated that he has not made any other applications to come to Australia. He stated that he has visited several countries in South America over the years and has also been to Mexico. He stated that he has four children, one of which is the sponsor for this application, and the others live in Colombia. He stated that one of his children still live with them. He stated that he is now retired but was a taxi driver until 2019. He stated that he lives in a home with his wife that he owns and that he also owns an apartment that he rents out, and that he has been with his now wife for 18 years and they married six years ago.

18. The secondary applicant stated that she has a son who lives in Spain and that she continues to work making clothing from their home.

19. The sponsor stated that her mother passed away and that her father developed a new relationship, and that her brother had drug problems, and that in 2007 she finished accounting in Colombia then came to Australia on a student visa. She stated that she has been in Brisbane for 17 years and that she found work part-time at an accounting firm who sponsored her for a working visa. She stated that she studied for and achieved her CPA qualification and became a permanent resident.

20. She stated that she went back to Colombia in 2012 for a few months and then came back to Australia where she met her husband and that they have two boys aged eight and five, and that she continues to work as an accountant, and received her citizenship some time ago. She stated that she returns to Colombia to visit every two years or so but that it is difficult to travel with her young children, that she has no other relatives in Australia, that the applicants would be genuine temporary stayers, that she will ensure that they go home, and that she is happy to pay a bond.

21. She also stated that she believed there was a problem in the visa application made in 2019 wherein the application may have been made in conjunction with her half sister and her father and that it was initially granted but then cancelled after her half-sister began her travel alone and that she believed that the visa problem may have been caused by her half-sister in that context. She stated that she believed her half-sister may have visited Australia but did not know what occurred and she thought that her half-sister may have a nephew here in Australia.

22. She stated that her brother is a civil engineer and has applied to come to Australia on two occasions as a visitor and that he has been refused and has assumed that this circumstance may have caused the issues that they are facing but does not really understand why and that her father has a life in Colombia and will return to his home country.

23. She stated that if it was more acceptable for him to travel by himself without his wife that would be sufficient.

24. The Tribunal had a discussion with the applicant about this and he confirmed that he does have two other children from another relationship and that this person lives in Colombia, and he also has another child who lives in Italy, but he has no contact with them and does not know anything about the circumstances or how this matter occurred.

25. The Tribunal has considered all the evidence very carefully noting that the applicants have an incentive to return to their home country including family, assets, friends, and other personal circumstances that would indicate that they will return to their home country. The Tribunal also notes however that it has been suggested that the primary applicant, the sponsor’s father, would be prepared to travel by himself to see his daughter, and that the Tribunal considers that this may be a sensible course of action.

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

27. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

28. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations.

    Stephen Witts
    Member