Miller (Migration)

[2018] AATA 5838

Miller (Migration) [2018] AATA 5838 (3 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Sarah Louise Miller

VISA APPLICANT:  Dr Salah Raya

CASE NUMBER:  1815986

HOME AFFAIRS REFERENCE(S):           BCC2018/1318886

MEMBER:Linda Holub

DATE:3 October 2018

PLACE OF DECISION:  Sydney

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 03 October 2018 at 1:14pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – Tourist stream – genuine intention to stay in Australia temporarily – no intention to  work or study in Australia – doctor – visa to visit wife – does not want to jeopardise partner visa application – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.611, 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 Immigration on 24 May 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 9 January 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 Tourist 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 the applicant intends to stay temporarily in Australia.

5. On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

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

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

BACKGROUND

1. The review applicant is a forty-three year Australian citizen.  She is employed by the ACT Health and also has a private psychology practice in Canberra. 

2. The visa applicant is thirty four years of age and is a citizen of Syria.  He is currently working as a medical practitioner working in South Sudan. 

10) According to a submission provided to the Tribunal the parties met while they were both working in Syria in 2014.  A copy of a marriage certificate was provided showing that they married on 22 January 2018 in Tbilisi, Georgia.  The submission states that that the visa applicant holds permanent residency in Georgia and that he owns a house in Tbilisi.  The couple are expecting the birth of their first child in mid-December 2018.  According to a medical report provided by her obstetrician, the review applicant is a high risk patient because of her advanced maternal age, low lying placenta and SVT heart condition.

CONSIDERATION OF CLAIMS AND EVIDENCE

11) 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.

12) In the present case, the visa applicant seeks the visa for the purposes of visiting his wife, the review applicant.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

13) 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)).  The visa applicant has not previously travelled to Australia. He holds a current visa to travel into the Schengen zone and according to a submission provided to the Tribunal it states that he has held three Schengen visas, copies of which were provided to the Tribunal.  They allow him to travel freely to Europe for work and according to the submission he has done so regularly including to Switzerland, Norway and the Netherlands.  It also states, he had travelled on holidays to Italy, France, Lithuania, Estonia, Latvia, Finland, Sweden and Denmark.  Copies of his passport show stamps upon entry and exit into Amsterdam, Bologna, Kuala Lumpur, as well as multiple stamps into and out of Geneva, South Sudan, Damascus, Istanbul.

14) 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(2)

·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.

15) The submission states that the review applicant works as a Clinical and Forensic Psychologist and that she is currently employed as the Lead Psychologist and Director of Allied Health across Mental Health, Justice Health and Alcohol Drug Service with ACT Health.  Although no evidence was provided to the Tribunal in relation to her employment, research the Tribunal has undertaken confirms her employment with ACT Health through other publicly available information.  The Tribunal accepts the claims.  The Tribunal was provided with a copy of the review applicant’s NAB bank statement showing she had a balance of around $46, 000 as at 17July 2018.

16) The Tribunal was provided with a copy of a graduate attestation indicating that the visa applicant was awarded a Bachelor Degree of Medicine in 2007 from the Damascus University.  He is employed by the International Committee of the Red Cross (IRC) as a ‘staff health delegate’ and a copy of his current contract shows a start date of 11 December 2017 and the duration is open ended.  A certificate provided by the IRC states that he has been on contract since April 2015 and working on various assignments as part of the IRC’s humanitarian mission to protect and assist the victims of armed conflict and other situations of violence.  He is paid an annual income of approximately $A162, 000 (plus accommodation and other benefits).  The Tribunal was provided with a copy of a contract in relation to his purchase of a house for $US73,000 in Tbilisi.

17) The Tribunal is satisfied that based on the income and qualifications of the visa applicant and the review applicant’s income and savings, he will not work nor will he engage in study or training while he is in Australia.

18) Condition 8503 refers to entitlement and does not require compliance.

19) The review applicant’s submission to the Tribunal states that the couple lodged a Partner (subclass 309) visa on 13 June 2018.  It is understood by both the review and visa applicants that if he overstays his Visitor visa it could jeopardise the Partner visa application and they are aware that the applicant must be offshore for the grant of a Partner (subclass 309) visa.

20) The Tribunal has had regard to the delegate’s concern that the visa applicant did not provide any evidence of employment in Syria to establish an incentive to return.  The Tribunal acknowledges that on-going employment can act as a significant incentive as can assets and ties to Syria, referred to by the applicant.  The Tribunal has also had regard to the delegate’s concerns regarding the socio-political situation in Syria.  The Tribunal is of the view that the fact of the visa applicant’s employment by the IRC since 2015 readily explains his lack of employment in Syria.  On the basis of other claims being substantiated by written evidence the Tribunal is prepared to accept statements in the written submission that the visa applicant’s mother and two of his brothers live in Syria and that he has purchased an apartment in Syria.  In relation to the situation in Syria, the Tribunal has put weight on the fact that the visa applicant has lived and worked in circumstances that have required humanitarian support by the International Red Cross.  Furthermore, the Tribunal is of the view that the visa applicant’s history of employment with the IRC indicates he has other options (in addition to Georgia, where he claims to hold residency).  In addition, the Tribunal considers that the desire to obtain a Partner (subclass 309) visa also provides an incentive for the applicant to abide by his visa conditions.

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

22) 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

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.

Linda Holub
Member