Mahawaduge (Migration)

[2024] AATA 938

Mahawaduge (Migration) [2024] AATA 938 (8 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mr Jagath Kumara Perera Mahawaduge
Mrs Galboda Liyanage Ayesha Thushani Jayasinghe

VISA APPLICANTS:  Mrs Rani Perera Mahawaduge
Mr Donal Cavan Fernando Waduge

CASE NUMBER:  2303557

HOME AFFAIRS REFERENCE(S):          BCC2023/492497

MEMBER:David Crawshay

DATE OF ORAL DECISION:  8 April 2024

DATE OF WRITTEN STATEMENT:         8 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the first-named visa applicant meets the following criterion for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

DECISION:The Tribunal does not have jurisdiction in respect of the second-named visa applicant.

Statement made on 08 April 2024 at 4:13pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – visiting family accompanying mother – genuine temporary entrant and compliance with conditions – mother’s previous visas and compliant entries – review applicant’s intention to maintain compliance record – second applicant husband the brother-in-law of review applicant – not specified relationship – no jurisdiction for second applicant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 357, 338(7)(b)
Migration Regulations 1994 (Cth), r 4.02(4), Schedule 2, cls 600.211, 600.221, 600.222

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 9 March 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 29 January 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 visa applicants applied for the visas 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 visas on the basis that the first-named visa applicant (hereafter referred to as “the visa applicant” unless otherwise indicated) did not meet cl.600.211 because the delegate was not satisfied that the visa applicant did not genuinely intend to stay temporarily in Australia for the purpose for which the visa was granted. A similar decision was made in respect of the second-named visa applicant.

5. The first-named review applicant (the review applicant)[1] appeared before the Tribunal on 8 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

   [1] In the application for review form dated 13 March 2023, the second-named review applicant was also included as a review applicant. However, as she was not included as a relative in the visa application form, she is not entitled to act as a review applicant. As a result, no further reference will be made to her being a review applicant in this decision.

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 a visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether he or she has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by him or her was subject; whether he or she 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 applicants seek the visas for the purposes of visiting family. 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 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 three months.

11. Based on the profile of the visa applicant as a housewife and information showing that the review applicant has sufficient money to fund her stay in Australia, the Tribunal is satisfied that she intends to comply with condition 8101 relating to no work. It also accepts that she intends to comply with condition 8201 relating to no study or training for more than three months. These aspects are given weight.

12. The Tribunal has also considered all other relevant matters (cl.600.211(c)). It has considered that the visa applicant intends to accompany her mother to Australia if both are granted visas. It accepts that she has previously made similar applications on the basis of accompanying her mother, one of which was successful in 2020. Based on this information, it accepts that there is a relationship of dependence between the visa applicant and her mother such that the visa applicant would be required to travel with her mother to-and-from Australia.

13. The Tribunal notes that the Department has previously had no issues in granting visitor visas to the visa applicant’s mother (some for as long as three years). Given that the visa applicant’s mother is dependent on her for assistance to travel, it accepts that the visa applicant’s travel will mirror that of her mother. This provides a substantial measure of comfort that the visa applicant will depart within the validity of any visitor visa granted to her.

14. The Tribunal has considered incentives for the visa applicant to return. It heard from the parties at hearing that the second-named visa applicant has a long-term business as a fish trader who buys from the market and sells to hotels in the town in which they live, which is a coastal town. It especially heard from the second-named visa applicant who was working at the time of the interview. Although there is very little if any documentary information to substantiate the claims made, the Tribunal accepts that the second-named visa applicant works in a fish-trading business and that this provides income to his wife, the visa applicant. It accords some weight to this information.

15. The review applicant’s wife told the Tribunal that she did not want a “black mark” against their names if the visa was refused. She said that the she and the review applicant were always willing to pay a security bond but were never asked to do so. The Tribunal told her that it would note her concerns.

16. The Tribunal has considered the information in front of it when assessing whether the visa applicant genuinely intends to stay temporarily for the purpose for which the visa is granted. Mainly for the reason that it is satisfied that she will accompany her mother during any proposed travel, it is satisfied that she will depart the country within the validity of any visa granted to her.

17. Based on the above information and findings, the Tribunal accepts 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 in respect of her.

    NO JURISDICTION

18. The visa applicant’s visa application was made alongside an application from her husband, who is the second-named visa applicant. These applications were made as part of a group application with group ID N15IDA. The “group type” was listed as “Family”.

19. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975 (Cth). Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal.

20. Section 338(7) states as follows:

    A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

    (a)the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

    (b)a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen; and

    (c)particulars of the relative concerned are included in the application.

    [emphasis in original]

21. The visa being applied for in the present matter is a visa that could not be granted while the non-citizen (in this case, the second-named visa applicant) is in the migration zone. However, while the second-named visa applicant intended to visit the review applicant, the review applicant is not among the kinds of relatives listed in s.338(7)(b). Instead, the review applicant is the second-named visa applicant’s brother-in-law.

22. At hearing, the Tribunal informed the review applicant of its view that the review application was not valid in respect of the second-named visa applicant for these reasons and invited him to make any comments on whether a valid application has been made. He agreed with the Tribunal’s view.

23. Having reviewed the information in front of it, the Tribunal finds that the delegate’s decision in respect of the second-named visa applicant is not reviewable under Part 5 of the Act. It follows that this application for review was not properly made, and the Tribunal does not have jurisdiction in this matter.

    DECISION

24. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

25. The Tribunal does not have jurisdiction in respect of the second-named visa applicant.

    David Crawshay
    Member