Manase (Migration)

[2023] AATA 3521

Manase (Migration) [2023] AATA 3521 (26 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Davies Kamwishi Manase

VISA APPLICANT:  Miss Ivy Wambui

REPRESENTATIVE:  Ms Catherine Follett

CASE NUMBER:  2307172

HOME AFFAIRS REFERENCE(S):          BCC2023/2261084

MEMBER:Margie Bourke

DATE:26 September 2023

PLACE OF DECISION:  Melbourne

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 26 September 2023 at 10:56am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit mother– accompany maternal grandparents – grandparents have both been granted a visitor visa – visa applicant’s mother has applied for a partner visa – applicant’s mother and her stepfather intend to ensure the visa applicant will comply with the condition – applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

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

2. The visa applicant applied for the visa on 12 April 2023. 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 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 visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purposes of visiting her family.

5. The Tribunal has considered the information provided by the review applicant to the Department and to the Tribunal. The Tribunal has also considered the Department’s decision record dated 9 May 2023. The Tribunal has reached a different conclusion to the delegate on the information available to it. The Tribunal is satisfied it can make a decision favourable to the applicant without proceeding to a hearing on the information before it, pursuant to s.360(2)(a) of the Act.

6. The review applicant was represented in relation to the review.

7. The following are the written reasons that the Tribunal has concluded that the matter should be remitted back to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In reaching its findings in this review, the Tribunal has taken into account the age of the visa applicant, and the submissions provided by the review applicant, particularly including statutory declarations from the review applicant who is the visa applicant’s stepfather, and from the visa applicant’s mother.

10. In the present case, the visa applicant seeks the visa 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. Cl.600.211(a) : – 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.

12. The Tribunal is satisfied based on the information before it that the visa applicant has not previously been the holder of a substantive or a bridging visa in Australia. The Tribunal therefore cannot assess whether the visa applicant has complied substantially with the conditions of previous visas. The Tribunal gives this consideration neutral weight in its assessment of whether the visa applicant meets the criteria in cl.600.211.

13. Cl.600.211(b): – 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 600.612):

    ·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.

14. The Tribunal is satisfied that the visa applicant was born in 2011, and is currently aged 12 years. The Tribunal is satisfied that the visa applicant resides with her maternal grandparents and attends school in Kenya. The Tribunal is satisfied that the mother of the visa applicant is the spouse of the sponsor, and that she came to Australia in 2015 as the holder of a student visa.

15. The Tribunal has considered the statutory declarations of the review applicant, and the visa applicant’s mother, both dated 10 April 2023. The Tribunal is satisfied that the visa applicant’s mother sponsored by the review applicant has lodged an application for a subclass 820/801 partner visa. The Tribunal accepts the written evidence that in the future after the processing of the Partner visa application, if it is successful, the visa applicant’s mother will apply for a dependent child subclass 445 visa on behalf of the visa applicant. The Tribunal accepts the declarations in the statutory declarations dated 10 April 2023 of the review applicant and the visa applicant’s mother that if the visitor visa is granted to the visa applicant they will ensure the conditions are complied with, and will not do anything to jeopardise the current partner visa application and the proposed future dependent child subclass 445 visa application for the visa applicant. The Tribunal accepts the written evidence that the visa applicant’s mother and her stepfather intend to ensure the visa applicant will comply with the conditions to which the visa would be subject.

16. The Tribunal is satisfied that the visa applicant resides with her maternal grandparents in Kenya, and does have family members in her home country. The Tribunal is also satisfied that the visa applicant applied for the visitor visa, on the basis that she would travel to Australia in the company of her maternal grandparents. The Tribunal accepts the written evidence before it, that the maternal grandparents have both been granted a visitor visa to travel to Australia.

17. The Tribunal has considered all the evidence before it, and is satisfied that the visa applicant does not intend to work, study or train while in Australia. The Tribunal is satisfied based on the written evidence before it, that the visa applicant does not intend to apply for a dependent child subclass 445 visa whilst in Australia visiting her mother with her grandparents. The Tribunal is also satisfied that the visa applicant, and her maternal grandparents who are her guardians, and her mother and stepfather (the review applicant) intend that the visa applicant will not remain in Australia after the period of the visitor visa expires.

18. For all the above reasons the Tribunal is satisfied that the visa applicant intends to comply with the conditions to which the subclass 600 visa would be subject.

19. Cl.600.211(c): – The Tribunal has also considered all other relevant matters. The Tribunal is satisfied that the visa applicant has not seen her mother for eight years, since her mother departed Kenya in 2015. The Tribunal is satisfied that the visa applicant intends to come to Australia to see her mother and spend time with her mother whom she has not seen for eight years. The Tribunal is satisfied that the visa applicant intends to come to Australia with her maternal grandparents to visit her mother and meet her stepfather and stepsisters. The Tribunal is satisfied that the visa applicant will travel with her grandparents, and reside in her mother’s and stepfather’s home in Australia during the visit.

20. It is a relevant consideration that the purpose of the visit is for the visa applicant to visit her mother whom she has not seen for a significant period of time. The Tribunal accepts the submission that it is in the best interests of the child that she be granted a visa to enable her to travel to Australia with her grandparents to spend time with her mother.

21. For these reasons the Tribunal finds that there are other relevant matters to be taken into account, and which the Tribunal accepts are relevant to the assessment that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal finds the other relevant matters are evidence that the visa applicant intends to stay temporarily in Australia for the purpose for which the visa is granted, namely a family visit.

22. Conclusion: – For the reasons stated above, 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 is satisfied that the visa applicant meets the requirements of cl.600.211.

    DECISION

23. 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.

    Margie Bourke
    Member