Krasniqi (Migration)

[2017] AATA 346

Krasniqi (Migration) [2017] AATA 346 (23 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Romeo Krasniqi

VISA APPLICANTS:  Mrs Rajmonda Qerimi
Master Andri Qerimi

CASE NUMBER:  1620804

DIBP REFERENCE(S):  BCC2016/3842233; BCC2016/3843026

MEMBER:Di Hubble

DATE:23 February 2017

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 23 February 2017 at 4:08pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor)(Class FA) – Kosovo ­– Genuine temporary entrant – Family and business ties – Strong incentive to return – Security bond

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 6 December 2016 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2.    The visa applicants applied for the visas on 16 November 2016. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (the Regulations). The delegate refused to grant the visas on the basis that the visa applicants did not meet cl.600.211, which requires the visa applicant to satisfy the Minister that he or she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4.    The review applicant, who is the first-named visa applicant’s brother and the second-named visa applicant’s uncle, sought review of the delegate’s decisions on 7 December 2016.

5.    The review applicant submitted that:

• His sister and nephew have been invited to attend the baptism of his son, Roman.  Although it was scheduled for 15 January 2017, the baptism has been postponed until the visa application is finalised because his sister is Roman’s godmother;

• They applied for a 3 month visa but that does not mean they will stay in Australia for this entire period.  His mother, Drita Krasniqi, came to Australia in 2012 on a 3 month visa, however only stayed for 8 weeks due to her work and family commitments in Kosovo.  They only applied for a 3 month visa on this occasion because the processing time was unknown and they needed some time in advance to possibly change their plans if there was any delay in the visa application;

• His sister’s employment ties in Kosovo are strong because she is the owner and manager of a very busy hairdressing salon in Gjakove, which will not close while she is in Australia as she has employees that will work in her absence and her husband, Ardian, will also be there in her place;

• His sister has demonstrated sufficient ties to Kosovo, with proof of her registered business, superannuation and tax payments.  She is also leaving behind her daughter, who will be safely looked after by her loving father for the duration of the visit.  If not for her young age, his niece would have accompanied her mother on the trip;

• His mother lives next door to his sister and brother-in-law’s apartment so his niece will be safe and well looked after;

• His sister would not leave her own child and husband behind to come and live in Australia with only her son.  His sister and her husband have a very loving marriage and they live a happy and satisfactory life in Kosovo.  They go on overseas trips as a family every summer; their last vacation was in Turkey;

• This trip is purely for leisure and family reasons, mainly his son’s baptism ceremony;

• If their visas are approved he will be responsible for their stay in Australia and their safe and timely return to Kosovo.  He is willing to pay a security bond to show that they are genuine visitors to Australia and will return to Kosovo possibly even before the 3 month mark.

6.    Evidence of the first-named visa applicant’s relationship to Drita Krasniqi is found on her marriage certificate, which names Drita Krasniqi as her mother.  The Tribunal obtained Drita Krasniqi’s departmental movement records, which indicate that she was granted a Subclass 679 Sponsored Family Visitor visa on 25 September 2012, she arrived in Australia on 19 December 2012 and she departed prior to the cessation of her visa on 7 February 2013.  

CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case 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 visas are granted.

8. The visa applicants seek the visas for the purpose of the review applicant’s son’s baptism and a family visit more generally. These are purposes for which a visa in the Sponsored Family stream may be granted: cl.600.231.

9.    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)).

1. As the visa applicants have never previously held an Australian visa, cl.600.211(a) is not relevant.

2. The Tribunal must also consider whether the visa applicants intend to comply with the conditions to which the Subclass 600 visas 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.

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

4. In assessing cl.600.211(b) and (c), the Tribunal considers that the presence of the review applicant and his immediate family in Australia would provide some incentive for the visa applicants to overstay their visas. However, the Tribunal considers there are other factors that will increase their incentive to return to Kosovo in a timely fashion after visiting Australia, including the fact that:

• The visa applicants’ husband/father, daughter/sister and mother/grandmother live in Kosovo and will remain there during their visit to Australia;

• The first-named visa applicant has a well-established hairdressing salon in Kosovo;

• The review applicant has offered to pay a security bond, if required by the Department.

1. The Tribunal also places significant weight on the fact that the visa applicant’s mother, Drita Krasniqi, travelled to Australia on a visitor visa in late 2012 and departed Australia in a timely fashion (as detailed at paragraph 6).

2. The Tribunal has considered the visa applicants’ circumstances overall and is ultimately persuaded that the stated intention, of only coming to Australia temporarily and for the express purpose of a family visit, is genuine.  The Tribunal is satisfied that the visa applicants will abide by their visa conditions. 

3. 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

1. 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.

Di Hubble
Member