Rizwansally (Migration)

[2021] AATA 4007

Rizwansally (Migration) [2021] AATA 4007 (28 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Raihaanah Rizwansally

VISA APPLICANT:  Mr Nashik Nawzad

CASE NUMBER:  1926974

HOME AFFAIRS REFERENCE(S):          BCC2019/3920747

MEMBER:Stephen Witts

DATE:28 September 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 28 September 2021 at 11:29am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – employment in home country –credible and truthful witness– pending spousal visa application –the visa applicant genuinely intends to stay temporarily in Australia –decision under review remitted

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 5 September 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 8 August 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 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, 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 that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 28 September 2021 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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 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 Tribunal notes that there is no evidence before it of any substantial breaches of visa conditions by either applicant.

11. The Tribunal must also consider if appropriate 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):

    ·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. According to the delegate’s decision record dated 5 September 2019 provided to the Tribunal by the applicants the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

13. According to the delegate it considered the visa applicant’s personal circumstances, the incentive to return home, the employment status of the visa applicant and other matters including the lack of evidence of a regular income that would act as an incentive for the applicant to return to his home country of Sri Lanka. On that basis it made a decision that the visa applicant does not genuinely intend to stay in Australia temporarily.

14. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence provided at the hearing. In particular the Tribunal notes a letter written by an employer called New Gold House stating that the visa applicant is working as a sales assistant. The Tribunal also notes a letter dated 24 September 2019 written by the review applicant stating that she is the spouse of the visa applicant and that she and her family have invited her husband over to visit in Australia. It was further stated that he would live and stay with her and that she will provide accommodation and expenses and that he has a family and a job in his home country to return to.

15. At the hearing the Tribunal had a discussion with the applicants regarding their application.

16. The visa applicant stated that he and the review applicant were married in July 2018 and that he has never visited Australia and nor has he ever made any other visa application to Australia. He stated that he is 24 years old and that he has also travelled to India as a tourist. He stated that he lives with his parents in his home country of Sri Lanka and that he also has a twin sister. He stated that he works as a sales assistant at a jewellery store where he has worked since 2018. He stated that his family owned land and a coconut farm.

17. The visa applicant stated that she was born here in Australia and that she first met her husband in 2014. She stated that she has a mother and father, and three brothers and three sisters all under 20 years old. She stated that she and her husband have applied for a spousal visa a year or so ago. She stated that she originally wanted her husband to come for a visit but that circumstances have changed now that they have a spousal visa pending and that a partner visa would now be more appropriate.

18. The Tribunal had a detailed discussion with the review applicant about this matter and the review applicant stated that she did acknowledge that it is more appropriate now that her partner visa be pursued as she wants her husband here in Australia with her permanently but that if given a visitor visa she would ensure that he abided by the conditions of the visa and he would return home but that it would still be good for him to come out here for a period of time to see Australia and how they may live together here and then he would go home to his home country and wait until the spousal visa application was finalised.

19. The Tribunal has considered this matter very carefully and notes that it would be a considerable encouragement for the visa applicant to be here on a more long-term basis so that he could wait in Australia until his partner visa application was finalised but is satisfied after discussing the matter in particular with the review applicant who stated that under no circumstances would that occur and that they would prefer that the partner visa application was prioritised so would not want to cause any difficulties with that matter and that until that occurred her husband would return home to work in his jewellery store where he has been for several years and spend more time with his parents, especially now that his mother is ill, until the more long-term visa is approved.

20. Accordingly the Tribunal, although concerned by the incentive that would clearly be there to remain permanently in Australia accepts the evidence provided in particular by the review applicant that the visa applicant would return home after a visit and wait for the more substantive visa application to be resolved. The Tribunal in this case under the specific circumstances discussed above accepts the evidence of the review applicant that her husband would only visit for a time and then return home pending the outcome of the more substantive visa application.

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

22. 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

23. 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.

    Stephen Witts
    Member