RAMANDI (Migration)

[2019] AATA 610

RAMANDI (Migration) [2019] AATA 610 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jason RAMANDI

VISA APPLICANT:  Mrs Mahlagha FASIH RAMANDI

CASE NUMBER:  1800756

HOME AFFAIRS REFERENCE(S):           BCC2017/3897237

MEMBER:Linda Holub

DATE:5 March 2019

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 05 March 2019 at 3:10pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 – Tourist stream – genuine temporary entrant – complied with conditions of previous visits to Australia – applicant has multiple entry visa to Canada – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 19 November 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 23 October 2017. 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 (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 because the delegate was not satisfied the visa applicant genuinely intends to stay temporarily in Australia.

5. On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

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

BACKGROUND

1. The review applicant first came to Australia in [2010]. He was born in Iran in September 1983 and is now an Australian citizen. The visa applicant is the review applicant’s mother. She was born in March 1960 and was married in March 1975.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

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

10) 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)).  The visa applicant has previously travelled to Australia on

three occasions and the evidence before the Tribunal is that she has complied with her visa conditions.  She was first granted a Tourist (TR-676) visa in 2012 and then again in 2013.  In 2016, the visa applicant was granted a Visitor (FA-600) visa.  On each occasion she left some months before the visa was due to cease.  Evidence was provided that the visa applicant has been granted a multiple entry visa to Canada.

11) 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.

12) The Tribunal has considered the evidence submitted to both the Department and the Tribunal.  The Tribunal has had regard to the evidence regarding the visa applicant and her husband’s savings and short term deposit accounts.  The visa applicant holds property in her own name.

13) The evidence before the Tribunal is that the review applicant runs his own business and he stated in a letter to the Tribunal that he will accommodating the visa applicant during her stay and will support all her expenses.

14) The Tribunal is satisfied that the applicant will not work, engage in study or training while she is in Australia. 

15) Condition 8503 refers to entitlement and does not require compliance.

16) The Tribunal has put significant weight on the visa applicant’s positive migration history.  The Tribunal is satisfied that she will wish to continue to travel to Australia to spend time with her family in Australia and will not jeopardise this by breaching her visa conditions.  The Tribunal has had regard to the incentives for the visa applicant to return to usual country of residence including her husband, other close family relatives as well as her home and other assets. 

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

18) 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

19) 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.

Linda Holub
Member