Myburgh (Migration)

[2019] AATA 455

Myburgh (Migration) [2019] AATA 455 (6 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Derrick Myburgh

VISA APPLICANT:  Mr John Myburgh

CASE NUMBER:  1728164

HOME AFFAIRS REFERENCE(S):           BCC2017/3387136

MEMBER:Moira Brophy

DATE:6 February 2019

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 and cl.600.212 of Schedule 2 to the Regulations.

Statement made on 06 February 2019 at 2:18pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – family visit – incentives to return home – strong family ties in South Africa – other family members' prospects of obtaining Visitor visas in the future – adequate means to support – self-funded retiree – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.212, 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 13 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 17 September 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 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.600.212, which requires the visa applicant to satisfy the Minister that the visa applicant has themselves or has access to adequate means to support themselves during the period of the applicant’s intended stay in Australia.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.212 because did not have adequate means or access to adequate funds to support himself during his proposed visit.

5. The review applicant, Mr Derrick Myburgh appeared before the Tribunal on 4 February 2019 to give evidence and present arguments.

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

   BACKGROUND

7. The visa applicant is an 89-year-old national of South Africa. He is married and his wife, Ms Ruth Viola Boyce will be accompanying him on his travel. He has two step-sons in the United Kingdom, one step-son and a biological son in Australia. He has previously been to Australia on 6 occasions in 2002, 2013, 2015 and 2016. In his application for a Tourist visa, he stated that he has been retired since 1996 and his travel will be funded by his step-son, Mr Alistair Boyce.

8. The review applicant, Mr Derrick Myburgh, is the son of the visa applicant and an Australian citizen by conferral, after being granted an Employer Nomination Skilled visa in 2001. He is employed as the Head of Professional Services at BAE Systems.

9. In support of his Tourist visa application, the following were provided:

   ·Visa applicant’s passport biometrics and showing travel stamps

   ·Visa applicant’s flight itinerary, travel insurance confirmation

   ·A letter of invitation from Dr Alistair Boyce, dated 8 September 2017

10. On 14 November 2017, the review applicant submitted a letter to the Tribunal in support of his review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether cl.600.211 and cl.600.212 is met, which requires the Tribunal to be satisfied that that the visa applicant has themselves or has access to adequate means to support themselves during the period of the applicant’s intended stay in Australia. A further issue for the Tribunal is whether cl.600.211 is met, that is whether  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 family. 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)).

14. At the time of hearing the review applicant told the Tribunal that his father had previously travelled to Australia on numerous occasions. He visited twice in 2013, twice in 2015 and twice in 2016. He has previously travelled to New Zealand and to the USA. He lived in Canada for six years where he studied theology. The review applicant told the Tribunal his father had previously complied with the terms of the visa he had been granted including when he had been in Australia on a Visitor visa.

15. 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.

16. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given by the review applicant as to why the visa applicant was seeking to come to Australia to visit her family. The review applicant said his father and step mother wanted to come and visit him and his family here and to combine with their planned visit a trip to New Zealand where his sister and her family lives. The review applicant has wanted his father to come to Australia over the Christmas period when his daughter would be home on holidays from university. The Tribunal accepts it is the intention of the visa applicant to visit his son and his family. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

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

18. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The review stated he wanted to spend time with his father and for his daughter to spend time with him. He stated it was difficult for him and his wife to travel because they both were in demanding jobs and it was not always easy to get time off. In addition their daughter was at university in Canberra so she was only able to travel during university holidays.

19. The review applicant gave evidence that the visa applicant wants to come to Australia for four to six weeks. Generally his father and step mother would fly to Australia and spend time with the review applicant and his family and the son of his step mother and they would then fly to New Zealand and spend some time there with the sister of the review applicant and her family. Given his father is now aged 90 he finds that pattern of travel is less disruptive. The review applicant said his father would not stay for a period longer than six weeks. His step mother is a semi-retired general practitioner. She still does locum work in the area they live. In addition to that both his father and step mother are actively involved in a project for children with disabilities. The daughter of his step mother is a psychologist who runs a facility teaching children relationship and life skills by getting them to interact with horses she keeps on her farm. His father and step mother assist at this farm and would not want to be absent for a period longer than six weeks.

20. The Tribunal asked the review applicant how his father would pay for his trip. He said his father was a self-funded retiree and his wife was still in receipt of an income from her work as a locum. He said his father also had an investment property he received an income from. The review applicant said he would meet any costs incurred during his father’s stay in Australia. He was in stable employment at executive manager level and was in a very secure position financially.

21. The Tribunal asked the review applicant what incentives the visa applicant has to return to South Africa at the end of his permitted stay in Australia.

22. The review applicant responded that his incentives to return are his wife and her family, his assets and income and the life he has built there. He has his immediate family as in his son and daughter in Australia and New Zealand. But when his father remarried some four years ago he took on and became very close to his step children in South Africa. He is especially close to and involved with his step daughter who runs the facility to assist children with difficulties. He is in receipt of a pension from his superannuation fund and as the review applicant said his pension buys more in South Africa than in Australia. He would suffer a financial loss if he were to stay in Australia. When asked what would happen if he comes here, changes his mind and does not want to return to South Africa, the review applicant said it was not in his father’s nature to leave all that was familiar and dear to him.

23. The Tribunal has considered the evidence given by the review applicant. The review applicant has established his own life here since he came here in 2001, he has recently moved to a new home in a new area and he wants to show his father the fruits of his labour. The review applicant stated that the visa applicant is law abiding and that all the members of the review applicant's family are also law abiding as was evidenced by past adherence to visa conditions when they visited. The review applicant said it was important his family members were able to come and visit him and he understood that could only happen if they complied with the conditions of any visa they were granted.

24. The Tribunal has considered other relevant matters. The review applicant stated that if the Department requires a security bond he was prepared to lodge a bond of around $20,000. He stated that he is confident that his father will return to South Africa at the end of his visit.

    Findings

25. Having considered all the evidence, the Tribunal is of the view that the review applicant is a credible witness. The Tribunal accepts that the visa applicant has a strong commitment to his family in South Africa and to his life there and that this would provide a strong incentive for him to return to South Africa. The Tribunal accepts that he has the financial resources to pay for his trip to Australia. The Tribunal accepts that he does not intend to work, study or undertake any training in Australia. The Tribunal places considerable weight on the fact that he has only applied to visit in the context of her not having been to Australia to spend time with his son and his family since 2016.

26. The Tribunal accepts that the review applicant will provide the visa applicant with accommodation and food. The Tribunal accepts that the visa applicant has access to adequate means to support herself during the period of the applicant’s intended stay in Australia. Further the Tribunal accepts it is important to the review applicant that his family members are able to visit him in Australia and that he will ensure that the visa applicant complies with the conditions of his visa so as not to jeopardize other family members' prospects of obtaining Visitor visas in the future. The Tribunal is of the view that this would also provide a further incentive for the visa applicant to comply with the conditions of his visa.

27. The Tribunal accepts that the visa applicant's incentives to return to South Africa outweigh his incentives to remain in Australia after the end of his permitted stay. The Tribunal accepts that he intends complying with the conditions of his visa.

28. 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.600.212 and cl.600.211 are met.

    DECISION

29. 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 and cl.600.212 of Schedule 2 to the Regulations.

    Moira Brophy
    Member