Parminter (Migration)

[2018] AATA 1412

Parminter (Migration) [2018] AATA 1412 (19 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ian James Parminter

VISA APPLICANT:  Ms Elena Iastremskaia

CASE NUMBER:  1714168

DIBP REFERENCE(S):  BCC2017/1362871

MEMBER:Adrienne Millbank

DATE:19 April 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 19 April 2018 at 5:38pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Whether the applicant is a genuine temporary entrant – Plans to visit her husband – Visa applicant’s stated intention to migrate permanently – No evidence of non-compliance with previous visa conditions – Previously held a Subclass 300 (Prospective Partner) visa – Vague details about whether the parties intend to apply for a partner visa

LEGISLATION
Migration Act 1958 s 65

Migration Regulations 1994 Schedule 2 cls 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 31 May 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 12 April 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.600.211, 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. The Delegate was not satisfied that the visa applicant’s expressed intention to enter Australia temporarily was genuine.

5. The review applicant appeared before the Tribunal on 16 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in the Russian Federation. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

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

7. At the hearing the Tribunal advised the review applicant that it had information that would lead or could contribute to the decision under review being affirmed, and that this information comprised a record of interviews conducted by the Department with the applicant and the sponsor on 25 and 30 May 2017; the international movement records of both the review applicant and the visa applicant; information about the visa applicant’s previous visa applications; and information about the review applicant’s withdrawal of sponsorship. The review applicant was advised that when questions and issues arising from this information were raised, he could seek an adjournment and consult with his representative. The review applicant requested and was granted one adjournment during the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The visa applicant was born in the Russian Federation in 1969. The review applicant was born in Australia in 1952. The parties claim they established contact online in 2012, and met in person in 2013, when the applicant was in Australia on a Visitor (subclass 600) visa from 15–28 August 2013. The visa applicant returned to Australia on a Prospective Marriage visa on 9 December 2015. The parties married in Hamilton, Queensland, on 23 April 2016.

10. The visa applicant returned to the Russian Federation on 14 May 2016. According to the review applicant she returned to care for her parents, who suffered illnesses in the months and years before; according to the review applicant, she returned because there was a breakdown in the relationship at this time. In December 2016, the review applicant contacted the Department to advise that the relationship had ended, and he was withdrawing his sponsorship.

11. In January 2017, the review applicant advised the Department that he wished to reinstate his support for the visa applicant ‘in matters relating to visa applications’. The visa applicant lodged an application for a Visitor (subclass 600) visa in January 2017, with a proposed stay of eight months. This application was refused.

12. This application was lodged on 12 April 2017. The visa applicant stated that she was proposing to stay for three months, and her purpose for visiting at this time was to attend celebrations, from June to August 2017, of the birthdays of the review applicant and the visa applicant, and the engagement of the review applicant’s daughter. At hearing, the visa applicant stated that she was now seeking a three-month visa for the purpose of visiting her husband. The review applicant stated that he planned to take the visa applicant on road trips in Victoria.

13. On 23 May 2017 the review applicant confirmed to the Department, in writing, that he had reconciled with the applicant, and intended to fully support her ‘in all her visa applications’.

14. 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.

15. In the present case, the visa applicant seeks the visa for the purposes of visiting her husband. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

    Compliance with visa conditions

16. 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)).

17. From the evidence available, the visa applicant complied with the visa conditions of her previous Visitor (subclass 600) and Prospective Partner (subclass 300) visas. As noted, her application for a further Visitor visa, lodged in January 2017, was refused.

18. At hearing the review applicant advised that in 2017 he had visited, with the visa applicant: Dubai in the United Arab Emirates; Thailand; Cambodia and Laos. He advised that prior to entering into a relationship with him in 2013, the visa applicant had travelled to Turkey; and to Vietnam, with her daughter. There is no evidence before the Tribunal to suggest that the visa applicant has not complied with previous visa and travel conditions.  

19. 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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

20. The applicant at hearing stated that she would both study and work in Australia if the conditions of the visa permitted, but that if they did not, she would abide by the conditions of her visa. She stated that she didn’t know anything about her visa applications, as everything was handled by her sponsor (the review applicant). The review applicant confirmed that he organised all of the visa applicant’s visa applications, and that she simply signed the forms. The visa applicant stated that as a former police officer she was law-abiding and, further, that she would comply with any work or study restrictions on her Visitor visa for the reason that she might otherwise jeopardise subsequent visa applications. She acknowledged that her intention is to live with the review applicant, in Australia.

21. The Tribunal accepts that the applicant intends to comply with the conditions to which the visa would be subject, in this case not to work or study for more than three months during the validity of the visa.

    All other relevant matters

22. The Tribunal has also considered all other matters relevant to the genuineness of the applicant’s intention to stay temporarily in Australia for the purpose for which the visa is granted (cl.600.211(c)). 

23. The parties’ agent submitted the following incentives for the visa applicant to return to Russia following her proposed visit to Australia: she has parents there who have suffered illnesses; her two daughters live there, one of whom is purchasing her own apartment, where the visa applicant could stay; the visa applicant is supported financially by her husband, and so is able to support herself in Russia despite being unemployed.

24. The Tribunal finds these arguments weak and unconvincing. The visa applicant confirmed at hearing that at the time of decision her parents’ state of health is not such as to require her to be there to care for them. She confirmed also that her two sisters live near her parents, and can and do care for them when required. The visa applicant’s daughters are adults and live independently. The visa applicant’s husband is in Australia, and whatever financial support he provides her could more easily be provided to her in this country. Furthermore, it is the visa applicant’s stated intention to migrate permanently, as the spouse of the review applicant. At hearing she advised that she intends to study English and the law, to live and work and make a life for herself in Australia.

25. When the Tribunal asked the review applicant why the visa applicant didn’t lodge a Partner visa application, rather than a Visitor visa application, he stated that it took a long time for their Prospective Partner visa application to get processed, and they didn’t want to have to go through a similar wait again. The Tribunal asked the review applicant whether it was the intention of the parties to lodge an application for a Partner (subclass 820) visa while the visa application is onshore on a Visitor visa. The Tribunal pointed out that the review applicant in interview with the Department in May 2017 had stated that he viewed ‘an 820’ visa application as the next step. The review applicant confirmed that he advised the Department that he saw ‘an 820’ application as the next step, and stated that he has at all times been open and honest with the Department regarding his intentions.

26. The review applicant was vague and evasive when asked directly whether it was not in fact the parties’ intention to lodge a Partner (subclass 820) visa application while the visa applicant is in the country on the Visitor visa that is the subject of review. He stated that they might choose to apply for an extension of the Visitor visa; or they might choose to travel overseas together, before lodging an application for a Partner visa. The visa applicant, when asked why she didn’t lodge an application for a Partner visa rather than a Visitor visa, as she had argued to the Tribunal that it was her ‘right’ to enter Australia to be with her husband, stated that she left  everything to do with her visa applications to her husband, the review applicant. When asked what she and her husband had discussed and agreed together, in terms of plans as to when they would live together, she acknowledged that they had discussed such plans, but stated that the review applicant was best placed to explain these plans.

27. The review applicant acknowledged that he and the visa applicant have discussed plans regarding the lodgement of a Partner visa, but claimed that he would be seeking further advice from his representative regarding the options available to them. He repeated that he wanted to avoid the lengthy wait they experienced for the Prospective Partner (subclass 300) visa. The Tribunal pointed out to the review applicant that if the parties had applied for a Partner visa instead of applying for this Visitor visa, the processing would have been completed or well underway by now. The review applicant stated that he didn’t realise it would take so long for the appeal against the Delegate’s decision to be considered by the Tribunal.

28. Having considered the claimed reason for the visa applicant’s visit to Australia being for the purpose of visiting her husband, the evidence and the circumstances of the visa applicant, the Tribunal finds that the visa applicant’s incentives to return to Russia are vastly outweighed by her incentives to remain in this country. The Tribunal further finds, for the reason that the review applicant has inasmuch acknowledged, that the parties intend, while the visa applicant is in the country, to apply for a combined onshore Partner (subclass 820/801) visa.

29. For the above reasons the Tribunal is not 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 not met.

    DECISION

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

    Adrienne Millbank
    Member