UDDIN (Migration)

[2017] AATA 897

UDDIN (Migration) [2017] AATA 897 (12 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr RAHIM UDDIN

VISA APPLICANTS:  Mrs RAHIMA KHATUN ABBAS
Master MOSTAFA BIN ABBAS

CASE NUMBER:  1610452

DIBP REFERENCE(S):  BCC2016/1789621

MEMBER:Fiona Meagher

DATE:12 May 2017

PLACE OF DECISION:  Brisbane

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.

The Tribunal does not have jurisdiction in the view application made by the second named visa applicant

Statement made on 12 May 2017 at 4:55pm

CATCHWORDS
           Migration – Visitor (Class FA) visa – Subclass 600 – Tourist stream – Genuine temporary    entrant – Sufficient funds – Family visit – No reviewable decision for secondary applicant      –        Applicant complied with previous visas – Family and business commitments – No jurisdiction with       secondary applicant

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 65, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2, Part 600, cl 600.211, cl 600.221, cl 600.222, r 4.02(4), cl 600.611(2) (3) (4))

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 7 June 2016 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 19 May 2016. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate did not consider the first named applicant had sufficient funds for their stay, nor that they genuinely intended to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 15 February 2017 to give evidence and present arguments.

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 a family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions. The Tribunal notes that it has jurisdiction to review a decision of the delegate to refuse to grant a noncitizen a visa made in relation to a visa applicant who made the visa application outside the migration zone and applying under the tourist stream or sponsor family stream and the stated purpose is to visit a specified relative: Ss.338(7); 347(2)(c).

10. The Tribunal notes that the second named visa applicant is not included in or referred to in the decision of the delegate, a copy of which was included with the review application, and which is the decision before the Tribunal for review. Accordingly, notwithstanding that the second named visa applicant has made an application for review, the Tribunal has no jurisdiction in respect of the him, as there is no decision before it in respect of him. The Tribunal notes that it is only aware of, and has only been provided with a copy of the delegate’s decision in relation to the first name visa applicant. The Tribunal notes that there has been some communication between the Tribunal officers and the review applicant in this regard before the hearing; and that while it appreciates the second named visa applicant was mentioned as a person who would be accompanying the first named visa applicant in the visa application form, there was only a decision made by the delegate in relation to the first named visa applicant.

11. The review applicant did not provide to the Tribunal any evidence to suggest that the second named visa applicant is the subject of a decision of the delegate to refuse the Visa. The evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision had been made in relation to the second named visa applicant.

12. As no reviewable decision in relation to the second named applicant had been made at the time the review application was lodged it follows that the application was not properly made in relation to the second named visa applicant, and the Tribunal does not have jurisdiction in relation to the second named visa applicant.

13. The first named review applicant is hereafter referred to as the visa applicant.

14. 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)).

15. The review applicant gave evidence that his sister, the visa applicant, has been to Australia before and complied with all of the conditions of the visa. She has also travelled extensively to other countries. He also explained that the other members of his family, including his mother, his mother-in-law and his brother had been to Australia multiple times and always complied with the conditions of their visas.

16. Further, the review applicant stated that he has a Cold Rock franchise and two Burger Edge franchises, a house at Durack and money in the bank, and would be willing to put those up as a bond to guarantee his sister’s compliance with the conditions of the visa.

17. The Tribunal is satisfied that the visa applicant has complied with the conditions of her previously held visas.

18. 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) (3) (4)):

    ·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.

19. The review applicant told the Tribunal that the visa applicant, his sister, has no intention of working or studying in Australia. She has two children in Bangladesh – a daughter at university and a son at school. All his sister wants to do is come to Australia to visit her younger sister who, after much difficulty, has had a child, have a family reunion in Sydney (for the family members who are in Australia) and then return to her husband and other family in Bangladesh. The visa applicant’s intention is to stay for one month.

20. The review applicant said that his sister, the visa applicant, jointly owns three houses with her husband who has a business in real estate and runs a market in the shopping centre. He also referred to his sister’s children. He said that his sister and her husband have plenty of money to enable the visa applicant to support her stay in Australia.

21. Based on the evidence, the Tribunal considers the visa applicant intends to comply with any conditions of her visa.

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

23. The Tribunal heard that the review applicant is one of a family of seven. He has two brothers and four sisters. One of his brothers and two of his sisters have Australian citizenship. His other three siblings all live in Bangladesh. His mother lives in Bangladesh and his father has passed away. He misses his family who are in Bangladesh. He has one child and is expecting another in August. The review applicant said his nephew, in respect of whom the Tribunal has no jurisdiction, will need to be cared for by an aunt if the visa applicant is successful in obtaining her visa. He appreciates, and states that the visa applicant also appreciates, that should she overstay her visa, or breach the conditions of it, that would prejudice the ability of other family members to visit Australia.

24. For the above reasons the Tribunal is satisfied that the visa applicants 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

25. 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.

26. The Tribunal does not have jurisdiction in the review application made by the second named review applicant.

    Fiona Meagher
    Member