Martinaj (Migration)

[2019] AATA 1524

Martinaj (Migration) [2019] AATA 1524 (2 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ervin Martinaj

VISA APPLICANT:  Mrs Lule Martinaj

CASE NUMBER:  1807782

HOME AFFAIRS REFERENCE(S):           BCC2017/3609569

MEMBER:Nora Lamont

DATE:2 May 2019

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 02 May 2019 at 11:39am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visiting two sons – does not speak English – no other relatives or friends in Australia apart from two sons – two daughters going to school in home country– incorrect information in initial visa application – genuine errors – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration on 19 March 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 3 October 2017. 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 (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 applicant genuinely intended to stay in Australia temporarily.

5. The review applicant appeared before the Tribunal on 2 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s brother and the visa applicant’s husband in Albania.

6. The review applicant was represented in relation to the review by his registered migration agent.

7. This was a combined hearing of AAT file number 1807780 and AAT file number 1807782 as the applicants are Husband and Wife.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting her two sons. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. 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)).

    Background

12. The initial visa application contained incorrect information. The Department asked the applicant to respond to information that on the application in response to the question does the applicant have any members of the family unit not travelling to Australia who are not Australian citizens or Australian permanent residents the applicant declared that he leaves behind three adult children and one dependent child. The Department contacted the applicant’s representative and requested that the applicant declare ALL family members in Australia and overseas, including if they are or have been known by another name/identity. Please provide full details and documents which refer to these names.

13. On 20 November 2017 in response the Department received the following: ‘My instructions are that there are three additional members who are no longer a part of the family unit as such are not reflected on the family status certificate.

14. The Department after investigating discovered that the applicant has more than one child residing in Australia, Mr Mark Matinaj who has resided in Australia since 2009. The applicant’s representative responded that it was their fault; they provided the incorrect information about the applicants other son living in Australia.

15. The delegate’s decision outlines that they were not satisfied that the applicant would abide by the conditions subject to which a Sponsored Family Visa is granted. The delegate noted support from the applicant’s family but that the applicant did not provide evidence of strong ties to Albania to demonstrate a genuine visit to Australia.

16. The delegate also found that the family members who were not initially declared on the application form raised serious concerns that the applicant may not be a genuine temporary visitor. The delegate did note that the presence of family members in Albania who would not be travelling to Australia they were not satisfied that this would offer enough inducement to return home.

    Tribunal Hearing

17. The visa applicant is a 63 year old female. She lives with her husband, two daughters and two of her sons. She receives a pension and owns two homes.

    cl.600.211(a)

18. 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)).

19. The applicant has travelled to Greece which did not require a visa. Whilst the applicant has no visa travel history, the Tribunal has no adverse information before it to indicate that the applicant would not comply substantially with the visa conditions.

20. 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.600.612):

    ·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.

21. The applicant is retired 63 year old who has no intention of working whilst in Australia. Further, the applicant does not speak English, has no relatives or friends in Australia apart from her two sons and she will have two daughters at home in Albania whilst she is away that she must return to as they are both in school. The applicant’s husband told the Tribunal he would not want to be away for more than a few weeks. Given the above the Tribunal is satisfied that the applicant genuinely intends to comply with these conditions.

22. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal is aware of and did discuss the initial application misinformation with the review applicant. The applicant said that his migration agent said it would be easy to get the visa and put in the application himself, which had wrong information in it. The agent did try to correct these mistakes.  

23. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal is aware of and did discuss the initial application misinformation with the review applicant. The applicant said that his migration agent said it would be easy to get the visa and put in the application himself, which had wrong information in it. The agent did try to correct these mistakes and did provide information to the delegate in response to their request for comment.

24. The Tribunal did discuss the adverse information with the applicant and is satisfied that these were genuine errors and not deliberate falsehoods. Further, the Tribunal did discuss the review applicant’s past migration history and the Tribunal is satisfied that the applicant is a settled Australian permanent resident who wishes to see his elderly parents. 

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.

    Nora Lamont
    Member