Tomlinson (Migration)

[2019] AATA 2605

Tomlinson (Migration) [2019] AATA 2605 (14 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Max Edward Tomlinson

VISA APPLICANT:  Ms Thi Thuy Nguyen

CASE NUMBER:  1730614

HOME AFFAIRS REFERENCE(S):           01159491 CLD2017/50158720

MEMBER:Christine Kannis

DATE:14 May 2019

PLACE OF DECISION:  Perth

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 and cl.600.212 of Schedule 2 to the Regulations.

Statement made on 14 May 2019 at 6:04am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting husband – relationship problems – parties later reconciled – Partner visa can only be granted onshore – intention to comply with visa conditions – delegate’s reasons for refusal – access to adequate means to support – review applicant’s income and assets – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.212

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 2 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 18 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.600.211and cl.600.212.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because it was not accepted that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In addition the delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.212 because the delegate was not satisfied the visa applicant had adequate means, or access to adequate means to support herself during the period of her intended stay in Australia.

5. The review applicant appeared before the Tribunal on 13 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by phone. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criteria on which the primary decision was made. 

9. The issues in this case are whether cl.600.211 and cl.600.212 are met. Clause 600.211 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 she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa; whether she intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter. Clause 600.212 requires the Tribunal to be satisfied that the visa applicant has or has access to adequate means to support herself during the period of her intended stay in Australia.

   Clause 600.211

10. The visa applicant seeks the visa for the purpose of visiting her husband who resides in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

11. 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)).

12. The visa applicant has previously travelled to Australia as the holder of a Visitor visa and has also held a Bridging visa. There was nothing before the Tribunal to suggest that she has not complied substantially with the conditions of these visas.

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

14. The review applicant said the visa applicant wants to travel to Australia to be with him because he is her husband. He said she is seeking to stay for three months. The visa applicant also told the Tribunal that the reason for her wanting to come to Australia was to visit her husband. She said she would prefer to stay for three months however the Department might only allow her to stay for one month.

15. The Tribunal accepts it is the intention of the visa applicant to visit her husband. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training. Based on the evidence the Tribunal is satisfied that the visa applicant does not intend to work, study or train in Australia.

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

17. The Tribunal had regard to written submissions dated 29 December 2017 and 8 December 2018 from the review applicant’s representative which included the following information and contentions:

    ·The review applicant and the visa applicant married in Western Australia in November 2016. An onshore Partner visa application was lodged and the visa applicant was granted a Bridging visa ‘A’, allowing her to remain in Australia while her application was processed.

    ·The review applicant and the visa applicant experienced some difficulties in the early days of their marriage, and as a result the visa applicant returned to Vietnam in March 2017 and the review applicant took steps to withdraw his sponsorship. This led to the visa applicant departing Australia without securing a re-entry facility.

    ·The review applicant and the visa applicant reconciled in September 2017 and the review applicant travelled to Vietnam. He has travelled to Vietnam on three further occasions in April 2018, in October 2018 and in February 2019.  

    ·Since August 2017, the visa applicant has unsuccessfully applied three times to return to Australia. Her Partner visa cannot be granted unless she is onshore.

    ·The decision to refuse the visa applicant re-entry to Australia as a Visitor is difficult to understand. Fundamental factors that would have provided the assessing officer enough information to conclude that an application to visit Australia temporarily was the appropriate facility were clearly and honestly presented. In the Form 1419 the visa applicant answered every question truthfully and in no way sought to deceive the assessing officer of the motive for her need to return to Australia.

    ·Specific comments of the delegate render the reasons for refusal simply lifted from a template, lacking clarity, claiming evidence which was provided to have not existed, disregarding the immigration status of the applicant, and reflecting a complete lack of insight into the reasons presented to allow temporary re-entry to Australia. The delegate’s statement regarding a breach of condition 8101 is an unreasonable inference because the parties said the visa applicant would be supported by the review applicant and evidence of his employment in Australia and his Australian bank account had been provided.

    ·The delegate said the Visitor visa is not the appropriate visa stream to reside permanently in Australia and the visa applicant’s immigration history and reasons for travel indicates a strong desire to reside permanently in Australia, which raises concerns that she is using the Visitor visa application to circumvent migration laws. There is no evidence that would suggest the visa applicant sought to take any advantage of her visa status in Australia and her reasons for wishing to travel back to Australia give no indication that her application for a visa was intended to ‘circumvent’ migration laws.

    ·If the AAT-MRD is unable to find the decision to refuse the visa applicant a Visitor visa was incorrect, there will be no ground for the Department’s Partner visa Processing Section to find her primary visa application to be one for approval. This has serious consequences for the review applicant, an Australian citizen, the interests of who must be taken into account by authorities considering his sponsorship of a spouse. Alternatively a favourable outcome, if achieved in a timely manner without delay will have the effect of allowing the visa applicant re-entry to Australia so that her visa application on Partner grounds can be fully considered.

18. The review applicant told the Tribunal that he would like the visa applicant to stay in Australia indefinitely but in applying for the Visitor visa she is seeking to stay here for three months. He said if she is required to leave Australia at the expiration of her Visitor visa then she will do so. He said the incentive for her to depart Australia is that she would not be permitted to return if she fails to comply with a condition of the visa. He also said an incentive for her to return to Vietnam is that her two children and her sisters and her brothers live there.

19. The review applicant said if the visa applicant is required to depart Australia he will continue to visit her regularly in Vietnam as he has done since September 2017.

20. The visa applicant told the Tribunal that she will depart Australia at the expiration of her Visitor visa because she will comply with the conditions attached to her visa. She will be sad to leave the review applicant because she would like to be close to him all the time but she knows he will visit her in Vietnam.

21. The review applicant’s representative told the Tribunal that if the visa applicant is granted the Visitor visa, she might apply for a Bridging visa which would allow her to remain in Australia while her Partner visa application is being processed. He said the lodging of an offshore Partner visa application has been discussed however given the cost involved, it has not yet been pursued.

22. In the written submissions the review applicant’s representative said the visa applicant’s reason for applying to visit and remain in Australia is legitimate and a refusal has serious consequences for the review applicant because the Partner visa application cannot be processed if she is offshore. The Tribunal accepts that a refusal would have serious consequences however these consequences flow from parties’ own actions. The visa applicant left Australia without securing a right to return and the review applicant withdrew his sponsorship for a time. The Tribunal notes that it is open to the visa applicant to lodge an offshore application for a Partner visa.

23. The Tribunal accepts the evidence of the review applicant and the visa applicant, both of who provided consistent and clear evidence.

24. In considering cl.600.211, the Tribunal’s focus has to be on whether the visa applicant genuinely intends to stay temporarily in Australia for the purposes of joining the review applicant here for a limited period. Clearly both parties hope that the Partner visa application will be processed while the visa applicant is onshore however they accepted that if this does not happen and if the visa applicant is required to depart Australia, then she will do so.

25. The Tribunal accepts that the visa applicant wants to come to Australia to visit the review applicant, even if she is only permitted to stay for one month.  The Tribunal accepts that the visa applicant will depart Australia at the expiration of her Visitor visa and both parties said if she is required to depart Australia the review applicant will continue to visit her in Vietnam.

26. The review applicant and the visa applicant both told the Tribunal that the Visitor visa is sought for a discrete period of time, namely three months and one month respectively.

27. The Tribunal accepts that the visa applicant might apply for another visa when she is in Australia which would enable her to remain here while the Partner visa application is being processed. The Tribunal observes that the visa applicant may not be successful in applying for a further visa and notes that the timing of processing her Partner visa application cannot be predicted with any accuracy. The Tribunal told the review applicant the Partner visa application may not be processed during the visa applicant’s visit to Australia.

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

    Clause 600.212

29. In the visa applicant’s Form 1419, in response to question 40 which asked for details as to how she would maintain herself financially while she is in Australia, she said she would return to the review applicant’s home and be fully supported by him.

30. An Interim Statement of Account for an ANZ account in the review applicant’s name showing a balance of $30,617 as at 24 August 2017 was provided. A payslip dated 22 December 2017 showing the review applicant was employed for 10 hours in the week 18 December 2017 to 24 December 2017 was provided.

31. A Notice of assessment for the year ended 30 June 2018 which showed the review applicant’s taxable income was $33,215 was provided.

32. Several Western Union transfers showing the review applicant transferred money to the visa applicant on a regular basis in 2018 were provided. Generally the amount transferred was between AUD$200 and AUD$300.

33. The review applicant told the Tribunal that he is in receipt of age pension and also has income from his employment. He confirmed that he works 10 hours per week. The review applicant said the current balance in his ANZ account is approximately $25,000. He sends the visa applicant money every two or three weeks to cover her living expenses. The review applicant has no significant debts. He confirmed that he will financially support the visa applicant during any intended stay in Australia.

34. The Tribunal is satisfied that through the financial support of the review applicant, the visa applicant has access to adequate means to support herself during the period of her intended stay in Australia.  Therefore the visa applicant meets the requirements of cl.600.212.

    Conclusion

35. For the above reasons the Tribunal is satisfied that the visa applicant meets the requirements of cl.600.211 and cl.600.212.

36. 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 and cl.600.212 of Schedule 2 to the Regulations.

    Christine Kannis
    Member