Rakhmatova (Migration)

[2018] AATA 1592

Rakhmatova (Migration) [2018] AATA 1592 (13 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nargiza Rakhmatova

VISA APPLICANT:  Mr Toir Rakhmatov

CASE NUMBER:  1717035

DIBP REFERENCE(S):  BCC2017/2365212

MEMBER:Tania Flood

DATE:13 April 2018

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 of Schedule 2 to the Regulations.

Statement made on 13 April 2018 at 11:50am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Whether the applicant genuinely intends to visit Australia temporarily – Strong family ties in home country – Extensive business ties in home country – Strong incentives to return to home country – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, Conditions 8101, 201, 8503, 8531

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 3 August 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 3 July 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 visa was refused on the basis that the visa applicant did not meet cl.600.211 because the Delegate was not satisfied he genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 11 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

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

   BACKGROUND

7. The review applicant is the visa applicant’s daughter.  She is married with one child.

8. The visa applicant was born on 18 January 1956 in Uzbekistan. He currently resides in Tashkent.   He has a wife and son in Uzbekistan.  He is the Managing Director of a family owned company.  He would like to visit his daughter and her family for up to three months.

   TRIBUNAL HEARING

9. The review and visa applicants provided credible and consistent evidence to the Tribunal which is summarised below:

10. The review applicant became an Australian citizen after her marriage.  She is expecting their second child. 

11. The review applicant works as an Accountant and her husband is a Financial Advisor for Macquarie Bank.

12. The review applicant has no immediate family in Australia.  Her father and mother are divorced and her father has remarried.  Her father and his wife live in Tashkent in her father’s home. Her brother, his wife and three children live in separate accommodation in Tashkent.  She also has a sister who lives in the United States.

13. The visa applicant has six remaining brothers and one sister who all live in his birth town, Shakhrisabz, in Uzbekistan.

14. The review applicant’s mother returned to live in Krygyz after the divorce.  She has visited the review applicant several times in Australia.  Her sister has also visited Australia twice.

15. The visa applicant has travelled outside of Uzbekistan numerous times.  In recent years he has visited Thailand and Malaysia.  In previous years he visited the United States, France, Germany and the Netherlands.

16. The visa applicant is a sole trader and operates his own business which is called Fanata Extra.   The company imports and sells whitegoods including refrigerators and washing machines.  His son is a managing director of the company. 

17. The visa applicant would like to visit his daughter, son-in-law and grandchild in Australia for up to three months. Apart from a brief time when they met in Thailand recently, he has not spent any significant time with his daughter for seven years.  His daughter is now expecting a second child and he would like to be able to provide her with some support and assistance.  He is able to manage critical aspects of his company’s work remotely by phone and internet and his son will also be there to assist with the running of the business in his absence. 

18. The visa applicant will return to Uzbekistan after the visit because his wife and son and grandchildren all live there.  Further he is very close to his siblings.  He also has his business affairs to take care of and he also coaches young people to play tennis. 

19. The visa applicant was born in Uzbekistan but later went to live in Krygyz.  After the collapse of the Soviet Union the family returned to Uzbekistan.  Because he was unable to prove his Uzbekistan citizenship prior to the collapse of the Soviet Union he was only granted permanent residency on his return.   He has applied for citizenship but is still waiting for the matter to be finalised.  While this requires him to obtain a travel permit to enter and depart the country it does not limit his life in any other way.

20. The visa applicant claims not to be a religious person and has no involvement in political affairs. 

21. The review applicant is willing to provide a security bond in the event it is required in order to facilitate the grant of her father’s visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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.

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

24. 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)).

25. The review applicant first entered Australia on 19 March 2008 as the holder of a TU-570 visa.  She was granted a series of student visas thereafter before departing Australia on 16 December 2009.  On 14 January 2010 she returned to Australia.  On 14 June 2013 and 4 March 2014 she was granted Partner visas.  On 26 August 2015 she became an Australian citizen.

26. The visa applicant has never visited Australia.

27. The review applicant’s mother travelled to Australia on 29 October 2013 as the holder of a Visitor visa and departed Australia on 19 November 2013 before her visa ceased.  Since then she has been granted a series of multiple entry Visitor visas.  She has entered and departed Australia several times, always within the time limits of her visas.

28. The review applicant’s sister has twice visited Australia on Visitor visas.  On both occasions she departed Australia before her visas ceased.

29. 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(2)):

    ·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.

30. The evidence before the Tribunal supports that the visa applicant runs his own small business in Uzbekistan.  The review applicant testified that she is employed as an accountant and she provided payroll information which indicates her husband is a Financial Advisor for the Macquarie Bank.   The Tribunal is satisfied that the visa applicant has the means to fund his own travel to Australia and that the review applicant will provide him with accommodation and other support while he is here.  The Tribunal is satisfied that the visa applicant will not, and has no need to work in Australia if he is granted a visa.  Similarly, given the visa applicant’s age, language abilities and the stated purpose of the visit the Tribunal is satisfied that he will not engage in study or training in Australia if he is granted a visa.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if he is granted the visa.

31. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

32. The review and visa applicants provided consistent evidence in respect of the visa applicant’s marital status.  The Tribunal accepts he is divorced from the review applicant’s mother and has since remarried and lives together with his new wife in Tashkent.  Her remaining presence in Uzbekistan, together with the visa applicant’s son, three grandchildren and seven siblings, far outweighs, in the Tribunals view, his family ties in Australia which are limited to his daughter and her small family.  The Tribunal accepts that the presence of these close family members in Uzbekistan is a strong incentive for him to return home at the end of his visit.

33. On the available evidence, the Tribunal also accepts the visa applicant runs his own business and that he intends to continue running the business for the foreseeable future.  As his son is integrally involved in the running of the business the Tribunal considers he has an incentive to ensure its continuing success.  The Tribunal is of the view that the visa applicants employment will also act as an incentive for him to return to Uzbekistan after his visit to Australia.  The evidence of the review and visa applicants is also that the visa applicant is an avid tennis fan and coaches young people on a daily basis.  At the hearing he spoke about his interest in Australian tennis players and the Tribunal accepts his tennis interests are also of importance to him and will also act as an incentive for him to return to Uzbekistan when his visa ceases.

34. The visa applicant has indicated he would like to visit Australia for up to three months.  Given the length of time he has been apart from his daughter, together with his age and the length and cost of the travel involved, the Tribunal does not consider the proposed length of stay to be any indication that he intends to seek to remain in Australia beyond the term of his visa. 

35. The Tribunal has before it evidence of the visa applicant’s travel to Thailand and Malaysia in recent years.  The visa applicant has not produced evidence of his claimed travel to Germany, France, the United States and the Netherlands because his former passport has reportedly expired.  As the Tribunal found the review and visa applicant’s testimony overall to be credible the Tribunal accepts this explanation is plausible and accepts that he has travelled to a range of different countries and that he returned to his home in Uzbekistan after those travels.  The Tribunal accords weight to the visa applicant’s previous travel history which supports he has no desire or need to remain outside of his home country on a permanent or extended basis.

36. While the visa applicant has never visited Australia the review applicants mother and sister have visited Australia on different occasions and complied with the conditions of their visas.  The review applicant herself has no adverse migration history.  The Tribunal considers this reflects positively on the credibility of the review applicant and lends support for her claim that her father only intends to visit Australia temporarily.

37. The Tribunal has also placed weight on the review applicant’s willingness to provide a security bond in the event it is required by the Department in order to facilitate the grant of the visa.

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

39. 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.600.211 are met.

    DECISION

40. 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.

    Tania Flood
    Member