Mortis (Migration)

[2019] AATA 2567

Mortis (Migration) [2019] AATA 2567 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ioannis Mortis

VISA APPLICANT:  Mr Eleftherios Korres

CASE NUMBER:  1801941

HOME AFFAIRS REFERENCE(S):           BCC2017/3847257

MEMBER:Margie Bourke

DATE:18 April 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 18 April 2019 at 12:47pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuinely intend temporary stay – purposes of visiting family members – substantially compliant with terms last substantive visas – circumstances engaged operation of exclusion period of three years – current family responsibilities and employment in home country – mental and psychological health benefit to family – evidence applicant intends temporary stay – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, PIC 4014

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 20 November 2017 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 19 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 visa applicant genuinely intended to stay temporarily in Australia.

5. The review applicant appeared before the tribunal on 15 April 2019 to give evidence and present arguments. The tribunal also received oral evidence from the visa applicant via telephone, and from the review applicant’s other son who resides in Australia. The tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.

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

7. For the following reasons, the tribunal has concluded that the matter should be remitted 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 the present case, the visa applicant seeks the visa for the purposes of visiting family members.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. 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)).

11. The visa applicant has previously travelled to Australia.  I accept the visa applicant came to Australia in approximately 1999 as the holder of a subclass 976 visa. The evidence before me is that the visa applicant came to Australia at this time to attend his brother’s wedding.  The visa applicant gave evidence that he thought he had come to Australia later in that decade, and met his brother’s oldest son.  The visa applicant’s movement records indicate the visa applicant also came to Australia in 2003 as the holder of a subclass 976 visa. There is no evidence before me that there was any substantial non-compliance by the visa applicant with the terms of his visas.  I accept the evidence of the witnesses relates to visas held by the visa applicant over 15 years ago. The movement records are generally consistent with the evidence and recollection of the visa applicant in the hearing.

12. The visa applicant came to Australia in May 2011 as the holder of a Subclass 976 visa, which ceased in August 2011.  The visa applicant was granted a subclass 676 visa in August 2011 and in November 2011. In 2012 the visa applicant was granted bridging visas, whilst his application for a remaining relative (Subclass 835) visa was processed. This application was refused by the Department on 27 May 2013, according to the information in the Department decision record dated 20 November 2017 pertaining to the application for the visitor visa which is the subject of this review.  I accept the visa applicant departed Australia in July 2014. I have considered the submissions and evidence that the visa applicant was substantially compliant with the terms of the last substantive visas he held, (the subclass 676 visas) and the subsequent bridging visas he was granted.  I note the evidence that the visa applicant was unlawful for a matter of one or possibly two days and could not leave the country immediately he was required to do so as his passport had expired.  I am satisfied the visa applicant was granted a bridging visa E, and obtained a passport from the Greek Embassy issued in June 2014, a copy of which has been provided to the tribunal, and he departed Australia soon afterwards.  I am satisfied the applicant’s circumstances engaged the operation of PIC 4014, and an exclusion period of three years applied.

13. I have considered the applicant’s particular circumstances, and the evidence before me, and I am satisfied the visa applicant has complied substantially with the terms of the last substantive visa he held in Australia, and the terms of subsequent bridging visas he held in Australia.

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.600.612):

    ·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.

15. I am satisfied based on the evidence before me that the visa applicant has a child born in 2009, by a de facto relationship that ended in approximately 2014. I am satisfied the visa applicant resides with his mother, is in full time work, and provides financial support to his son. I accept the applicant’s son lives with his mother in Bulgaria, but sometimes comes to Greece. I accept the visa applicant visits his son during the summer, Christmas and Easter holidays and the occasional weekends. I accept the visa applicant commenced his current employment position last December 2018.

16. I have some concern in relation to the apparent inconsistency that arises in the evidence that the visa applicant states he will return to Greece because of his emotional and financial commitment to his son; yet in 2012 he applied for a remaining relative visa in Australia.  This indicates that in 2012 the visa applicant intended to move to and remain permanently in Australia without his son, that he did not consider his son a ‘near relative’, and he did not intend to provide ongoing emotional support to his son. The visa applicant and his father explained that at that time the visa applicant did not have work and Greece was in economic difficulties so the visa applicant could not provide for his son at that time.  The visa applicant stated he had intended to continue to return to visit his son when he could, if he had obtained a permanent visa at that time.

17. The visa applicant stated he had been in employment as a mechanic since his return to Greece in July 2014, and now held a good position with responsibility. I accept that the visa applicant has provided a letter from his current employer confirming his position.  The visa applicant stated he was entitled to approximately 2 to 3 months leave per year when all holidays were considered.  The visa applicant provided other information to the tribunal relevant to his current circumstances that indicate he intends to return to Greece before the expiration of his visa.  This information included a letter and translated copy from his mother, and from the mother of his son, about the support he provides to both his mother and his son respectively. I accept the evidence that the visa applicant currently has responsibilities towards his mother and his son, and that he has satisfying employment, and for these reasons the visa applicant genuinely intends to return to his home country within the period the visa is granted.

18. I accept the visa applicant has a strong connection to his father whom he has not seen since 2014.  I accept the review applicant, (the visa applicant’s father) based on the psychological reports provided has struggled with psychological and mental health issues the visa applicant was refused a permanent visa and attracted an exclusion period before he could apply to come to Australia to visit his father. I accept the review applicant was referred to a psychologist in August 2014, and continues to receive treatment for his psychological and mental health issues.  I accept there is a direct connection between the visa applicant not being able to visit his father, and the review applicant’s mental health.  I also accept the evidence that the review applicant and the visa applicant are aware of the consequences if the visa applicant does not comply with the terms of the visa, and the effect that not being able to visit again, or the stress of further immigration process difficulties would have on his father’s mental and psychological health.

19. I accept the evidence that the visa applicant does not intend to work, study or train while in Australia.  I accept the evidence that the visa applicant intends to comply with the conditions to which the visa would be subject. I have considered all the evidence before me. I am satisfied that the applicant does intend to visit temporarily for the purpose for which the visitor visa would be granted.

20. The tribunal has also considered all other relevant matters (cl.600.211(c)). I have considered that the review applicant has provided information in relation to his business and circumstances that were not available to the Department.  I accept that the visa applicant wishes to visit his brother and nephews, especially as his brother has recently separated from his second wife. 

21. 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

22. 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