Mendygalieva (Migration)

[2020] AATA 3626

Mendygalieva (Migration) [2020] AATA 3626 (31 August 2020)

CORRIGENDA

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Iana Mendygalieva

VISA APPLICANT:  Mr Evgenii Mendygaliev

CASE NUMBER:  1835469

DIBP REFERENCE(S):  BCC2018/3648577

MEMBER:Scott Clarey

DATE OF DECISION:  31 August 2020

DATE CORRIGENDUM

SIGNED:3 September 2020

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

·The words ‘In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream’ at paragraph 2 should be replaced with ‘In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream’.

·The words ‘This is a purpose for which a visa in the Sponsored Family stream may be granted:  cl.600.231‘ at paragraph 7 should be replaced with ‘This is a purpose for which a visa in the Tourist stream may be granted:  cl.600.221 and cl.600.222‘.

·The words ‘The conditions to which a visa in the circumstances of this case would be subject are as follows  (cl.600.612)‘ at paragraph 10 should be replaced with ‘The conditions to which a visa in the circumstances of this case would be subject are as follows  (cl.600.611(2))‘.

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Iana Mendygalieva

VISA APPLICANT:  Mr Evgenii Mendygaliev

CASE NUMBER:  1835469

HOME AFFAIRS REFERENCE(S):          BCC2018/3648577

MEMBER:Scott Clarey

DATE:31 August 2020

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 31 August 2020 at 3:25pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to remain or return – review applicant and mother only relatives in Australia – other family, girlfriend, social life and ongoing employment in home country – previous compliant travel to Australia and other countries – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 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 8 October 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 25 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 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 review applicant appeared before the Tribunal on 6 August 2020 via teleconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. In the present case, the visa applicant (Mr Evgenii Mendygaliev, herein Mr Mendygaliev) seeks the visa for the purposes of visiting his older sister (Ms Iana Mendygalieva, the review applicant and sponsor) and her son, who he has never met. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

8. 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)).

9. The Tribunal notes Mr Mendygaliev previously visited Australia in 2003/2004 for a holiday on a tourist visa. The evidence before the Tribunal is that Mr Mendygaliev did comply with the conditions attached to this visa, including departing Australia before the visa ceased. The Tribunal accepts this and gives significant weight to the visa applicant’s previous travel to Australia and compliance with immigration conditions.

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.600.612):

    ·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.

11. The Tribunal discussed each of these conditions with Ms Mendygalieva. She told the Tribunal that Mr Mendygaliev would comply with all of the specified conditions. She said that her brother had no intention of remaining in Australia or working or studying here (longer than was allowed) during the period of the permitted stay. She noted that on his previous visit to Australia Mr Mendygaliev had complied with all of the conditions attached to his visa and would do so again. The Tribunal found Ms Mendygalieva to be candid and credible and accepts her oral evidence. 

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

13. At the hearing, the Tribunal asked Ms Mendygalieva questions relating to various factors that would act as an incentive for Mr Mendygaliev to remain in Australia after the proposed stay and those factors that would act as an incentive for him to return to Russia.

14. The Tribunal asked Ms Mendygalieva why her brother had applied for the visitor visa to visit Australia. She stated that it had been a long time since he had last visited Australia. He wished to visit his sister and mother (who also lived in Australia) and he wanted to spend time with Ms Mendygalieva’s son (Mr Mendygaliev’s nephew) who he had never met. Ms Mendygalieva said the trip would be a family reunion of sorts and that ideally the family wished to undertake some domestic travel within Australia so they could spend time together. Ms Mendygalieva also stated that her brother also intended to undertake a short, 6-week English language course while in Australia. Ms Mendygalieva said that her brother would stay with their mother at her house in Melbourne.

15. When asked about her brother’s life in Russia, Ms Mendygalieva said that her brother lived rent free in an apartment owned by their mother. She said he is not married but has a girlfriend there. Ms Mendygalieva stated that her brother works as a designer for a food company, and earned a relatively high salary of around $3,000 AUD per month. He owned his own car and motorbike and has a good, well-rounded life with many friends. He was well established in Russia and maintained many social, cultural and family ties there. The Tribunal has had regard to a translated letter (dated 27 July 2020 and submitted to the Tribunal on 8 August 2020) from Mr Mendygaliev’s employer confirming his employment at the company and his salary. The letter also states that Mr Mendygaliev has been approved to take 8 weeks leave from his job. The Tribunal accepts this.

16. Ms Mendygalieva stated that her brother is well travelled, having made multiple trips to Europe including trips to Germany and Bulgaria to check on investments that the family has in those countries. He is also a frequent visitor to Finland. Ms Mendygalieva said that her brother had always complied with the conditions of the visas he held for travel in these countries. The Tribunal accepts this.

17. When asked about her family, Ms Mendygalieva stated that her mother was a permanent resident in Australia, but all of her other family including her father and aunts and uncles lived in Russia. Ms Mendygalieva stated that family members, including her father and an aunt, had previously visited Australia and had all complied with the conditions of their respective visas. The Tribunal accepts this.

18. Mr Mendygaliev was available and willing to provide oral evidence by telephone from Russia but, having heard the review applicant’s oral evidence and reviewing the documents that were submitted, the Tribunal did not consider it to be necessary.

19. The delegate did not raise country information as a concern in the primary decision and no specific country information was discussed with the review applicant at the hearing.  

    Findings

20. The Tribunal has considered the documentary evidence submitted with the application and the additional documentary evidence that has been submitted to the Tribunal. The Tribunal has also had the benefit of hearing Ms Mendygalieva’s oral evidence. The Tribunal found Ms Mendygalieva’s evidence to be candid and credible.

21. After considering all the evidence before it, on balance the Tribunal considers that factors such as the presence of Mr Mendygaliev’s father and extended family in Russia, his well-established life there, his ongoing employment and his better than average economic status, form stronger incentives for him to return to Russia than the incentive for him to remain in Australia with his sister and mother. The Tribunal accepts that Mr Mendygaliev has a genuine intent to stay temporarily in Australia to visit his sister and other family members in Melbourne. The Tribunal accepts that Mr Mendygaliev intends to return to Russia within the specified timeframe.

22. For the above reasons the Tribunal is satisfied that Mr Mendygaliev 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

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.

    Scott Clarey
    Member