Rashid (Migration)

[2021] AATA 4710

Rashid (Migration) [2021] AATA 4710 (23 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Md Saddam Rashid

VISA APPLICANT:  Mr S R Milon

CASE NUMBER:  2000999

HOME AFFAIRS REFERENCE(S):          BCC2019/5313476

MEMBER:Mark Bishop

DATE:23 November 2021

PLACE OF DECISION:  Melbourne

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 23 November 2021 at 2:04pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 22 November 2019 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 23 October 2019. 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 Sponsored Family 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, 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.

5. The Tribunal determined the review application on the papers. This review application was determined at the same time as three other review applications as all review applications related to members of the same family. One submission and attachments were provided to the Tribunal in respect of the 4 separate review applications. Details are as follows:

6. The Review applicant  (RA) in all 4 cases was a Mr Md Saddam Rashid

7. Details of the separate Visa Applicant’s (VA’s) in each review application are as follows:

   ·Review Application number 2000998 Master Ayan Rahman Date of Birth 16 January 2008.

   ·Review Application number 2001010 Master Azan Rahman Date of Birth 2  February 2012.

   ·Review Application number 2001004 Ms Sabina Yeasmin Date of Birth 1 July 1983.

   ·Review Application number 2000999 Mr S R Milon Date of Birth 10 September 1969

8. The review applicant was represented in relation to the review by the registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

12. 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)).

13. 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 600.612):

    ·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.

14. The RA in review application number 2000999 made a lengthy written submission plus a large number of attachments that went to identity, birth certificates, passports, a marriage certificate, property holdings, bank account details, balance confirmation certificates, tax documents, business holdings, medical certificates and an accompanying statutory declaration in the name of Mr Saddam Rashid that outlined the detail of his relationship with the RA in review application number 2001004 and her family (his sister and her family).

15. The submission plus attachments referred to in paragraph 14 above was expressed to apply in respect of all the review applications as set out in paragraphs 5 to 7 above.

16. The written submission addressed all relevant criteria as set out in cl.600.211 (see Doc ID 9121133 in review application number 2001010).

17. 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

18. 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.

    Mark Bishop

    Member