Michael (Migration)

[2019] AATA 3471

Michael (Migration) [2019] AATA 3471 (1 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Joseph Dominic Michael

VISA APPLICANT:  Mr Brendon Tudor Michael

CASE NUMBER:  1807439

HOME AFFAIRS REFERENCE(S):          BCC2017/4265640

MEMBER:Nora Lamont

DATE:1 July 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 01 July 2019 at 10:50am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuinely intends to stay temporarily in Australia – applicant visited Australia four times and complied with visa conditions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 10 January 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 14 November 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 1 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in India.

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 family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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 applicant has been to Australia four times and each time he has complied substantially with the conditions on his visas. The Tribunal is satisfied that the applicant intends to comply with the conditions on his visa.

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 (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.

12. The applicant has been to Australia on four separate occasions and each time he complied with the conditions on his visa including not working, not engaging in any study (not even for three months) did not apply for any other visa and did not stay in Australia after the end of their permitted stay. 

13. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The applicant has a visa cancelled in July 2009 now 10 years ago. The applicant explained that he could not get a work certificate from his full time employer and as he was working part time he asked his part time employer for one. The Department contacted the applicant but was not satisfied with the applicant’s explanation and the visa was cancelled. The Tribunal is satisfied that this was ten years ago and that the applicant’s history of visa compliance outweighs this one cancellation.

14. The applicant’s entire family lives in Australia. The Tribunal considers that if the applicant had wanted to move to Australia or remain permanently in Australia he would have done so on one of the four previous times he was in Australia.

15. The applicant will be staying with his extended family while in Australia and he will have plenty of support. In addition, his brother-in-law has terminal cancer and he will be able to see him on this trip.

16. 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

17. 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