Viviet (Migration)

[2022] AATA 2937

Viviet (Migration) [2022] AATA 2937 (12 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Romain Viviet

CASE NUMBER:  2206047

HOME AFFAIRS REFERENCE(S):          BCC2020/2314835

MEMBER:David McCulloch

DATE:12 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 12 August 2022 at 9:57am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary stay for purpose of visa – finishing visit after working holiday – two years now passed since visa application originally made – previous refusal decision remitted – COVID-related international travel restrictions now mostly ended – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 4 April 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth).

2. The visa applicant who is a French citizen applied for the visa on 16 September 2020. 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. On 13 October 2021 the Department refused the application for the visa on the basis that the applicant had not satisfied cl 600.213(1) which includes the applicant passing various public interest criteria (PIC), including the PIC which requires a delegate to assess a person against the terms of the ‘character test’. The decision indicates that a police clearance certificate is a key source of information about the applicant’s character. The decision indicates that the applicant was requested in writing on four separate occasions to provide a statement by an appropriate authority in Australia providing evidence in relation to criminal history. The applicant did not respond to any of these requests. On that basis, the delegate was not satisfied that the applicant met PIC 4001 and the visa application was refused.

5. The applicant sought a review of that decision by the Tribunal and in doing so provided a copy of his Australian Federal Police National Police Clearance dated 25 September 2021 which disclosed no adverse record for the applicant. As a result the Tribunal remitted the matter back to the delegate indicating that the applicant met PIC 4001 for the purpose of

   
   

   cl 600.213(1) of Schedule 2 to the Regulations.

6. The delegate refused again on 4 April 2022 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 applicant genuinely intended to stay temporarily in Australia for the purpose stated.

7. The applicant appeared before the Tribunal on 10 August 2022 at 9.30am to give evidence and present arguments. The applicant was in the Northern Territory with the Tribunal Member being in Sydney. As a consequence, the hearing was held by telephone using Microsoft Teams. The applicant communicated in English.

8. The issues canvassed in the hearing were relatively straightforward and the Tribunal considers that the applicant was able to give his evidence and respond to questions satisfactory with the hearing held by telephone.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 finishing his visit to Australia after a working holiday. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222. In the application the applicant requests a length of stay of up to 12 months.

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 600.611(3):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

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

15. Relevant is the applicant’s history in Australia. Government systems indicate that the applicant was granted a Working Holiday 417 visa on 23 April 2018 which ceased on 26 June 2019. The applicant arrived in Australia on 8 August 2018 and departed again on 13 February 2019. He returned on 1 March 2019 and departed again on 11 June 2019. A further 417 visa was granted on 26 June 2019 ceasing on 18 September 2020. The applicant last arrived on 18 September 2019. The applicant applied for the Subclass 600 visitor visa on 16 September 2020.

16. In the hearing, the applicant agreed that this history of his travel visa status is correct.

17. As indicated, the applicant failed to respond to four requests by the Department to supply a police record evidencing no convictions. On this basis the visa was refused but the applicant was successful on review when he provided a police record to the Tribunal.

18. The Tribunal put to the applicant and the hearing that two years have passed since he made the application for the visitor visa in September 2020. That application indicates a request for a visa of up to 12 months for the purpose of the applicant finishing his visit to Australia after his working holiday.

19. The Tribunal indicated to the applicant that despite the indication that the applicant was concluding his visit to Australia he is now here almost two years after the application. That could strongly suggest to the Tribunal that the applicant’s intentions are not to remain here temporarily.

20. In response the applicant indicated that he understood the point being made by the Tribunal. However, he indicated that his situation has changed and his desire to stay in Australia was significantly because of COVID and not wanting to return to Europe given the nature of the outbreak there.  The applicant indicated that he is entitled to be working on his bridging visa and has done so to support himself. He does not intend to stay in Australia on a permanent basis, but asks for the visa to facilitate a road trip, with an undertaking that he would return to France in about two months.

21. The applicant then indicates he has a desire to seek a working visa in Canada the age limit of which is 36 years old which he is approaching. He would then travel to Canada. The applicant provided evidence to the Tribunal of him being accepted by Canada into its International Experience pool.

22. The Tribunal repeated its concern that the applicant had stayed well over a year beyond the period of time originally indicated in the visa application which, notwithstanding the COVID situation, could be seen as undermining of his intention to stay in Australia only temporarily. This includes in the context that the restrictions on international travel due to COVID-19 has mostly ended.

23. The applicant maintained that he only wishes to stay in Australia for a very short further period.

24. The Tribunal also has concerns that failure by the applicant to respond to four requests by the Department to provide a police record relating to his visa could suggest a deliberate attempt by the applicant to game and manipulate the system to extend his stay in Australia.

25. In response to the reason for not responding to requests by the Department, the applicant indicated that he had obtained a police clearance through the post office which he had provided but this was not acceptable and it took a period for a realisation that a new police clearance would be provided.

26. The Tribunal does not draw an adverse inference from the unanswered four requests from the Department for a police clearance.

27. However, the Tribunal maintains its concerns at the genuineness of the applicant’s intentions to stay in Australia temporarily given that he remains here two years after he indicated that he only wished for a visa for 12 months to wind up his affairs in Australia and return home. This takes into account COVID-19 and the current situation in relation to it and evidence provided by the applicant of potential working visa arrangements in Canada. The Tribunal considers notwithstanding COVID-19 that the applicant has had a reasonable and relatively extensive period of time in Australia to wind up his affairs from September 2020 after a working holiday to undertake travel and return home to France.

28. For the above reasons the Tribunal is not 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 not met.

    DECISION

29. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    David McCulloch
    Member