Olara (Migration)

[2024] AATA 1454

Olara  (Migration) [2024] AATA 1454 (10 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Emmanuel Gerald  Olara

VISA APPLICANT:  Miss Pamela Akot

REPRESENTATIVE:  Mr Louis Morris Kristopher

CASE NUMBER:  2304385

HOME AFFAIRS REFERENCE(S):          BCC2023/1308782

MEMBER:Stephen Conwell

DATE:10 May 2024

PLACE OF DECISION:  Perth

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 10 May 2024 at 4:17pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant and compliance with conditions – applicant and sponsor partners with young child – prospective marriage visa application in progress – one visit and regular financial support for applicant and child – notice of intended marriage provided – incentive to depart and wait for processing of prospective marriage visa – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)
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 Home Affairs on 21 March 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (the applicant) applied for the visa on 22 February 2023. 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 (Cth) (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 criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.211 because the delegate was not satisfied she genuinely intends to stay temporarily in Australia. 

6. The review applicant (the sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review. 

7. The applicant was represented in relation to the review by her registered migration agent (representative).

8. Having regard to the decision record, the information provided to the Department and the information, submissions and documents provided to the Tribunal, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the applicant seeks the visa for the purposes of visiting her husband (the sponsor and an Australian citizen, collectively, ‘the parties’). This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

    Cl.600.211(a)

12. In considering whether an 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)), however because the applicant has not previously travelled to Australia, this is not relevant.

13. The Tribunal must also consider whether the 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.

14. The Tribunal has considered the personal circumstances of the applicant who was born in 1994 and is currently 29 years of age.

15. The Tribunal has regard to the representative’s written submissions dated, 11 March, 21 March and 15 April 2024, as well as supporting documents, including but not limited to, the birth certificate of the parties’ child; money transmittals and their application for a Prospective Partner visa, which is acknowledged by the Department.  In summary, this evidence provides:

    ·the sponsor and applicant met for the first time when the sponsor was visiting family in Uganda in December 2011. In 2019 the sponsor returned to Uganda following his father’s death and the parties renewed their friendship. On 20 November 2019 they committed to a formal relationship with each other;

    ·in January 2020 the sponsor returned to Australia, learning soon afterwards that the applicant was two weeks pregnant with his child. The child was born in August 2020;

    ·on 9 November 2020 the sponsor proposed to the Applicant, which was accepted. He visited the applicant and child again in 2020;

    ·the sponsor is an  Australian citizen and in full-time employment. He financially supports the applicant who is now a homemaker, and their child;

    ·the sponsor sends monthly remittances to the applicant to meet rental payments, living expenses and school fees;

    ·the applicant applied for a Prospective Marriage (subclass 300) visa in September 2022;

    ·the sponsor has agreed to provide all financial and material support, including accommodation to the applicant and child should the visa be granted.

16. The Tribunal notes that the applicant’s parents and extended family continue to live in Uganda. She has no family or relatives in Australia – the sole purpose of her visit is to visit the sponsor, her de facto partner and father of their child. The parties have also declared an intention to marry in Australia should the visa be granted. A letter dated 19 December 2023 from a marriage celebrant in Perth confirms that the parties have filed a Notice of Intended Marriage to that effect.

17. The Tribunal finds these factors are further inducements to ensure that the applicant complies with all visa conditions should she be granted a visa.

    Cl.600.211(b)

18. Based on the evidence, the Tribunal is satisfied that the sponsor is able to support the applicant and child financially and with all other needs during the visit, as he currently does so whilst they are overseas.

19. The  Tribunal is satisfied that the applicant does not intend to work, study or train while in Australia. The parties’ child will be four years old in August this year.

20. The Tribunal accepts that the applicant genuinely intends to comply with the terms of the visa and to depart Australia before it expires.

21. The Tribunal is satisfied the applicant has sufficient incentive to return before the expiration of the visa, should it be granted and to await the processing of the parties’ Prospective Marriage (subclass 300) visa application.

22. Taking all these matters into account cumulatively, the Tribunal is satisfied that the applicant intends to comply with all visa conditions which would accompany the visa. The Tribunal is also satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    Cl.600.211(c)

23. The Tribunal has also considered all other relevant matters (cl.600.211(c)) and finds the applicant applied for a Prospective Marriage (subclass 300) visa in September 2022 and therefore has no reason to seek to overstay her Visitor visa, should it be granted.  The Tribunal is satisfied that this is a strong incentive which would encourage her to return at the end of a visit.

24. For the above reasons, the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa may be granted and finds that the requirements of cl 600.211 are met.

    DECISION

25. 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.

    Stephen Conwell
    Member