PAJACZKOWSKI (Migration)

[2018] AATA 371

PAJACZKOWSKI (Migration) [2018] AATA 371 (20 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamil Hubert PAJACZKOWSKI

CASE NUMBER:  1708073

DIBP REFERENCE(S):  BCC2017/1129754

MEMBER:Linda Symons

DATE:20 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 20 February 2018 at 9:48am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Intention of visit to Australia – Applicant does not intend to visit family in Australia – Applicant intends to undertake business while in Australia

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.221

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 27 March 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 to the Department of Immigration and Border Protection (the Department) for the visa on 23 March 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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.600.221, which requires the visa applicant to satisfy the Minister that he intends to visit Australia or remain in Australia to visit an Australian citizen or Australian permanent reside, who is a parent, spouse, de facto partner, child, brother or sister of the visa applicant or for any other purpose that is not related to business or medical treatment.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.221 because she was not satisfied that the visa applicant intends to remain in Australia as a visitor as his primary purpose for requesting a further stay is related to business. On 13 April 2017, the visa applicant applied to the Tribunal for a review of that decision.

5. On 11 December 2017, the Tribunal wrote to the visa applicant and informed him that it had considered the material before it but was unable to make a favourable decision on this information alone. The Tribunal invited him to appear before it on 20 February 2018 at 9.00am to give evidence and present arguments relating to the issues arising in his case. This letter was sent to his registered migration agent by email on 11 December 2017.

6. On 13 February 2018, the Tribunal received a Response to Hearing Invitation and written submissions from the visa applicant’s registered migration agent which indicated that the visa applicant declined the hearing invitation and requested that a decision be made in relation to the review. Accordingly, the scheduled hearing was cancelled.   

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

8. The issue in this case is whether cl.600.221 is met, which requires the Tribunal to be satisfied that the visa applicant intends to visit Australia or remain in Australia to visit an Australian citizen or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the visa applicant or for any other purpose that is not related to business or medical treatment.

9. In the present case, the visa applicant travelled to Australia on 9 January 2017 as the holder of a subclass TV 651 eVisitor visa that was valid until 9 April 2017. On 23 March 2017, he applied for a subclass FA 600 Visitor (Tourist) visa. In his visa application, he stated that he was seeking an extension of his visa until 23 June 2017 and the reason for the extension was “training local people at Malplus Factory”.

10. In written submissions to the Tribunal dated 13 February 2018, the visa applicant’s migration agent submitted that the Departmental delegate contacted him by telephone and asked him about the visa applicant’s intentions and that he responded that the visa applicant was training local people and he also wanted to visit Australia and return to Europe. He submitted that he informed the delegate that the visa applicant is not employed or getting paid in Australia. He submitted that sharing his knowledge or expertise does not necessarily involve business dealings especially when he was not being paid. He submitted that the visa applicant understands the issues and does not wish to attend the hearing.

11. In considering whether the visa applicant intends to remain in Australia to visit an Australian citizen or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the visa applicant, the Tribunal notes that the visa applicant has not stated that this is his intention in his visa application nor has his registered migration agent made this submission. Therefore, the Tribunal is satisfied that this is not his intention for remaining in Australia. Accordingly, the Tribunal finds that he does not satisfy cl.600.221(a).

12. In considering whether the visa applicant intends to remain in Australia for any other purpose that is not related to business or medical treatment, the Tribunal notes that in his visa application the visa applicant stated that the reason he was seeking an extension of his Visitor visa was for “training local people at Malplus Factory”.  His migration agent submitted that he also wanted to visit Australia. The fact that this was not mentioned in his visa application and that he only mentioned providing training at Malplus Factory tends to indicate that the training was his primary purpose for seeking an extension of his Visitor visa. 

13. The Tribunal is of the view that “training local people at Malplus Factory” tends to indicate that the visa applicant intended training employees of Malplus Factory and training employees of a business is clearly related to business. Whether or not he was paid for doing the training and his motives for doing the training are irrelevant. His evidence is that he intends remaining in Australia for the purpose of providing training for a business. This leads the Tribunal to the conclusion that his primary purpose for requesting a further stay in Australia is related to business. Therefore, the Tribunal is satisfied that it is his intention to remain in Australia for a purpose that is related to business. Accordingly, the Tribunal finds that he does not satisfy cl.600.221(b).

14. For the above reasons, the Tribunal is not satisfied that the visa applicant intends to remain in Australia for any other purpose that is not related to business or medical treatment and finds that the requirements of cl.600.221 are not met.

    DECISION

15. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Linda Symons
    Member