Watson (Migration)

[2023] AATA 3767

Watson (Migration) [2023] AATA 3767 (6 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Phillip Nicholas Watson

CASE NUMBER:  2218387

HOME AFFAIRS REFERENCE(S):          BCC2020/1525520

MEMBER:David Crawshay

DATE:6 November 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 06 November 2023 at 10:14am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – compliance with conditions of last substantive visa and subsequent bridging visas and intention to comply with conditions of current visa – savings and support from family – intention to return to home country then apply for working holiday visa – vague travel plans and knowledge of visa processes, and limited information provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, 600.611(3)

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

2. The applicant applied for the visa on 11 May 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 applicant to satisfy the Minister that he 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 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 purposes for which the visa was granted.

5. The applicant appeared before the Tribunal on 3 November 2023 to give evidence and present arguments.

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

   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 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 applicant seeks the visa for tourism purposes. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. In considering whether an 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. There is no information to show that the applicant has not complied with the conditions of his last substantive visa – a Subclass 601 visa granted in February 2020 – or the two bridging visas granted thereafter. Some positive weight is attached to this aspect.

11. The Tribunal must also consider whether the 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; and

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

12. At the hearing, the applicant told the Tribunal that his UK bank account had a current balance of £5,000. He told it that he is supported by his family who send him money. Although the Tribunal has not verified these claims against documentary evidence, it accepts that the applicant has sufficient funds, and will therefore not have a need to work while onshore. It accepts that he will comply with condition 8101 relating to no work. There is no information to show that he intends to engage in study or training in Australia for more than three months and accepts that he will comply with condition 8201. This aspect is given some weight.

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

14. At hearing, the applicant was unable to tell the Tribunal why his visa was refused and admitted that he had not read the decision. He told it that he was living in backpackers’ accommodation in Melbourne, waiting to go travelling to Western Australia. He said that he wished to leave Australia on the correct terms in February 2024, with his plan to stay and work in the United Kingdom for two years before applying for a Working Holiday visa (WHV). He said that, if he were to return in two years, he would be 33 and therefore under the maximum age for being granted a WHV.

15. When asked by the Tribunal if he had bought an aeroplane ticket to return to the UK, he replied that he had not but offered to buy one. When asked if he had an itinerary for his trip to WA, he replied that he was “winging it” but offered to draw up an itinerary if required. He said that he would see how the matter went before buying a ticket to travel there.

16. The Tribunal has considered the information in front of it including the above information and testimony. It has considered the submission put forward by the applicant that he wants to be able to leave Australia on the correct terms so that he might be able return on a WHV. At hearing, it put to him that he would not be precluded from applying for a WHV as he would be leaving Australia on a Bridging A visa and therefore would not be subject to the risk factor (in PIC 4014), although it acknowledged that his refusal might attract attention from the Department.

17. The Tribunal does not accept that the applicant would be disadvantaged, at least by the terms of the Act or Regulations, from applying for a further visa to come to Australia if he were to return to the UK having had the present visa refused although it accepts that a refusal of the present visa might be something considered by the Department in any future application. In any case, this information is given very little weight.

18. The Tribunal has considered that the applicant is requesting a further stay of at least three months in order to travel after having already spent over three-and-a-half years here. While some of this time in 2020 and the earlier part of 2021 may have been affected by the COVID-19 lockdowns, he has otherwise had ample time to travel around Australia. That he is requesting further time to undertake more travel, rather than seeking additional time to facilitate his return to the UK, is a major concern to the Tribunal. It is another manifestation of his willingness to stay in Australia despite having applied for visas that are meant to be temporary. This information is accorded adverse weight.

19. What is also a concern for the Tribunal is the applicant’s vagueness when it comes to migration matters. While it accepts that he has not breached conditions and has remained as a lawful non-citizen, it draws adverse inferences from his lack of knowledge of why his visa was cancelled let alone the fact that he had not read the decision itself. These responses, and the general dearth of information provided by him, do not reflect well on him and reveal a somewhat lax attitude towards important migration matters. This information is given some adverse weight.

20. Having weighed the evidence against itself, the Tribunal finds that the applicant’s actions in seeking to extend his time here after having been in Australia for a prolonged period of more than three-and-a-half years outweigh other evidence. It finds that these do not reveal a genuine intention to stay temporarily.

21. For the above reasons the Tribunal is not satisfied that the 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

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

    David Crawshay
    Member