Kwardha (Migration)

[2020] AATA 3901

Kwardha (Migration) [2020] AATA 3901 (14 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Lanny Mariska Kwardha

CASE NUMBER:  1827691

HOME AFFAIRS REFERENCE(S):          BCC2018/3342154

MEMBER:Ian Garnham

DATE:14 July 2020

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 July 2020 at 12:24pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – seeking business investment opportunities in Australia – children attending school in Australia – previous visa compliant visits – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 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 Immigration on 11 September 2018 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 applicant applied for the visa on 4 September 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 (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 Departmental (Department of Home Affairs (DHA)) delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because; they were not satisfied that the visa applicant would comply with conditions to which the visa would be subject and they were not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the stated purposes.  

5. The visa applicant is a 37yo Indonesian national.  The visa applicant appeared before the tribunal by conference telephone on 29 May 2020 to give evidence and present arguments. 

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

7. This review and hearing also included a review of decisions to refuse subclass 600 Tourist visas for both of her children; Elleina Dharma[1] (28/10/2010) and Roland Dharma[2] (15/11/2012).  The visa applicant consented to the joint reviews[3] and made submissions to the tribunal on behalf of the children.

   [1] AAT – 1827693 – 14 July 2020

   [2] AAT – 1827688 – 14 July 2020

   [3] At F: 27 (AAT)

8. The applicant was represented in relation to all the reviews by her registered migration agent. The representative also attended the Tribunal hearing by conference telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

    The purpose:

11. When the visa application was made, the visa applicant was in Australia.  It was stated that the visa applicant sought a further stay of up to 3 months.

12. In the visa application, the visa applicant sought the visa for the purposes of; …looking for business Investment opportunities in Australia.

13. This is a not a purpose for which a visa in the Tourist stream may be granted: cl.600.221(b).

14. Therefore, the visa applicant does not meet cl.600.221.

    cl.600.211(a):

15. 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.

16. The visa applicant has come to Australia many times.  She first visited in 2007 for 5 days and then returned in 2009 on a subclass 676 Tourist visa.  On 23/09/2009 and 01/12/2009 the visa applicant was granted subclass 685 Medical Treatment (Long Stay) visas.  On 20/12/2011 a subclass 675 Medical Treatment (Short Stay) was granted and this was followed by a subclass 685 Medical Treatment (Long Stay) visa granted on 28/03/2012.

17. The visa applicant was granted her first long-term visa on 20//03/2014, it was a subclass 165 Sponsored Investor (Provisional) visa and it ceased to have effect on 06/09/2018.  Since that time the visa applicant has held subclass 020 Bridging B visas.

18. There is no evidence before the tribunal that the visa applicant has failed to comply with the conditions of previous visas she has held.       

    cl.600.211(b):

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. The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(2)):

    ·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.

20. The delegate stated that they were not satisfied that the visa applicant intends to comply with conditions that would be attached to the visa. 

21. At the hearing the visa applicant said that the family have submitted an expression of interest and are awaiting an invitation to apply for a subclass 188 Business Innovation and Investment (Provisional) visa.  The visa applicant’s husband is currently in Indonesia and planning to return to Australia.  He also has extensive Movement Details to and from Australia.

22. The visa applicant gave evidence that she could not just go back to Indonesia because the children are in school, and they own property in Australia.

23. The schooling of the visa applicant’s children has been presented to the tribunal as a major reason why the visa applicant and her children cannot return to Indonesia.  If the visas were to be granted, the children attending school in Australia would amount to non-compliance with Condition 8201.    

    cl.600.211(c)

24. The Tribunal has also considered all other relevant matters.

25. The representative made an oral submission to the tribunal that included the following relevant points:

    ·The visa applicant has not been unlawful.

    ·The visa applicant could not fully explain the purpose of the visit because it entails seeking a new business visa for which the application has been made.  She could have included in the purpose of this application, visiting her sister, who has lived in Australia for 5 years.

    ·The amount of time she has spent overseas when returning to Indonesia, demonstrates that the visa applicant has a general intention to not stay in Australia permanently.

    ·The visa applicant could not up and leave because of her extensive history, interests and property in Australia, they need time to pack up and go.

26. As discussed above the visa applicant has been granted many visas.  The last long-term substantive visa held by the visa applicant ceased to have effect in September 2018.  Since then the visa applicant has been granted Bridging visas and travelled regularly back to Indonesia with the children.    

27. The visa applicant’s evidence with respect to her children highlights the nature of her stays in Australia.  The visa applicant stated that she wants her 7 and 9yo children to complete their schooling in Australia.  Of itself, this demonstrates that the visa applicant does not genuinely intend to stay in Australia temporarily.

28. Overall, and it was conceded by the visa applicant, this application was made to provide time for the visa applicant and her children to pursue the desired business visa that will provide them with the opportunity to remain in Australia.  This purpose is inconsistent with the Tourist visa program and manifestly inconsistent with a visa applicant genuinely intending to stay temporarily in Australia.      

29. 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

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

    Ian Garnham
    Member