Tov (Migration)

[2023] AATA 4732

Tov (Migration) [2023] AATA 4732 (8 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Huyny Tov

VISA APPLICANTS:  Mrs Huy Cheu Tov
Miss Choanna Ly

CASE NUMBER:  2216855

HOME AFFAIRS REFERENCE(S):          BCC2022/4369976

MEMBER:Joseph Lindsay

DATE:8 December 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 8 December 2023 at 2:30pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – substantial compliance with previously held visa – intention to comply with visa conditions – other relevant matters – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 3 November 2022 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 18 October 2022. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl 600.211 because the delegate was not satisfied that the visa applicants genuinely intended to stay temporarily in Australia.

5. Both the review applicant and visa applicant participated in a video hearing with the Tribunal on 3 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicants seek the visas for the purposes of visit the review applicant. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

9. 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)).

10. 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.

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

12. The Tribunal initially spoke to Mrs Huy Cheu Tov, who explained that she wanted to come and visit her sister. She said that she had not seen her sister for a long time. She said that she wished to bring her daughter with her for the visit. She said she also wanted to provide family support to her sister who herself has two young children. She said she had three children, and two of the children would stay in Cambodia while she visited her sister. She said her husband runs a shop, and that he would manage the business while she visited her sister.

13. The Tribunal then spoke to Mrs Huyny Tov. She said she would financially support her sister whilst she was in Australia and pay for her travel to and from Australia. She confirmed that  she had recently given birth to her second child. The Tribunal considered information supplied by the visa applicant, including financial information.

14. In consideration of the above information, the Tribunal accepts that the visa applicants wish to visit Australia to provide family support to the review applicant at this time. The Tribunal accepts that the visa applicants will not work or study during their stay in Australia. The Tribunal accepts that the visa applicants will abide by their visa conditions if granted the visa.

15. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

16. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations.

    Joseph Lindsay
    Member