Legua (Migration)

[2017] AATA 2614

Legua (Migration) [2017] AATA 2614 (18 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Barbara Maimun Legua

VISA APPLICANT:  Mr Moses Mohamed RAZAK BEGG

CASE NUMBER:  1619333

DIBP REFERENCE(S):  BCC2015/1682889

MEMBER:Fiona Meagher

DATE:18 September 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 18 September 2017 at 6:46pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 – Tourist stream – Visit family and friends – Intention to visit temporarily

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 Schedule 2 cls 600.211(a)-(c), 600.222 Schedule 8 Conditions 8101, 8201, 8503, 8531

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 25 October 2016 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 12 June 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the visa applicant did not provide sufficient evidence of their intention to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 18 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr Legua.

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

   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 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting his daughter. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)).

10. The visa applicant has held a number of visas to enter Australia in the past, and has always complied with the visa conditions.

11. 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:

    ·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.

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

13. The visa applicant is 76 years old, semi-retired, a permanent resident of New Zealand and a citizen of the Solomon Islands.

14. His wife, who has also applied for a visitor visa, is 71 years old, semi-retired, a permanent resident of New Zealand and a citizen of the Solomon Islands.

15. The visa applicant established a construction business in the Solomon Islands, which he now runs with his two sons, and regularly returns to oversee it. The business is successful.

16. The visa applicant has five children – the review applicant who resides in Brisbane Australia with her husband and son, two sons who reside in the Solomon Islands and have three and four children respectively, and a daughter and son in New Zealand who have three and four children respectively.

17. The visa applicant has visited his daughter, the review applicant, in Australia on previous occasions and never stayed more than three weeks, and always complied with the conditions of the visa. The Department’s records support that.

18. The visa applicant and his wife travel to and from New Zealand and the Solomon Islands regularly, and transit through Brisbane. They would like to be able to stop over in Brisbane and visit their daughter and her family, particularly their 10-year-old grandson, who they have not seen for two and a half years.

19. The visa applicant and his wife always travel with enough money to support themselves, and the Tribunal has sighted bank account records from the Solomon Islands and New Zealand which support that.

20. The review applicant is training to be a teacher’s aide, and volunteers at the local school.

21. The review applicant’s husband is an aircraft maintenance engineer and has worked for Qantas in that capacity since 2008.

22. The visa applicant and his wife have no extended family in Australia (only the review applicant and her family), but have friends they wish to visit as well.

23. Based on the evidence, the Tribunal is satisfied that the visa applicant has strong established family and economic ties to New Zealand and the Solomon Islands. He wishes to visit her daughter, son-in-law and grandson which is understandable, but has a preponderance of ties to New Zealand and the Solomon Islands. He is semiretired and has no intention of working or studying in Australia.

24. Taking into account all of the evidence before it, the Tribunal is satisfied that the visa applicant genuinely intends to stay in Australia temporarily while she is the holder of a visitor visa and will comply with all relevant conditions imposed on the visa. The Tribunal is satisfied that after a visit to see her daughter, son-in-law and grandchild, the visa applicant will depart Australia before her visa ceases.

25. 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

26. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Fiona Meagher
    Member