Paulus (Migration)

[2024] AATA 1529

Paulus (Migration) [2024] AATA 1529 (28 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Monica Paulus

VISA APPLICANT:  Miss Grace Garry

CASE NUMBER:  2300453

HOME AFFAIRS REFERENCE(S):          BCC2022/3548697

MEMBER:Andrew McLean Williams

DATE:28 May 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 28 May 2024 at 12:02pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – abiding by the visa conditions – no relevant evidence submitted – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211

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 7 November 2022 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 applied for the visa on 1 September 2022. 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 (Cth) (‘the Regulations’). Relevantly to this case, these include clause 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 clause 600.211 because no evidence had been provided in support of the visa applicant to show the basis upon which the Delegate could be satisfied that the Visa Applicant only intended to remain in Australia temporarily, and would return to Papua New Guinea (PNG).

5. The Review -Applicant appeared before the Tribunal on 29 February 2024 to give evidence and present arguments. At the hearing, the Tribunal indicated that, as had been the case before the Delegate previously, there was no evidence addressing the issues under clause 600.211.  The Tribunal adjourned the hearing part-heard, and allowed the Review Applicant until 24 May 2024 to provide additional evidence to show that the Visa Applicant had good reasons for returning to PNG.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 only 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.

8. In the present case, the Visa Applicant seeks the visa for the purposes of family visitation. This is a purpose for which a visa in the Tourist stream may be granted.

9. 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 (clause 600.211(a)).

10. 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:

    ·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.

11. Despite the Tribunal having afforded further time for the Review Applicant to submit evidence, as at the date of this decision no further evidence has been submitted and the Tribunal has no factual materials before it that might enable it to consider the relevant issues.

12. 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 clause 600.211 are not met.

    DECISION

13. The Tribunal affirms the decision not to grant the Visa Applicant a Visitor (Class FA) visa.

    Andrew McLean Williams
    Member