Wszola (Migration)

[2023] AATA 2915

Wszola (Migration) [2023] AATA 2915 (21 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jintana Wszola

VISA APPLICANT:  Miss Napawan Sriyotha

CASE NUMBER:  2214479

HOME AFFAIRS REFERENCE(S):          BCC2022/2672521

MEMBER:Stephen Conwell

DATE:21 August 2023

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations.

Statement made on 21 August 2023 at 1:08pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visa applicant’s committed relationship in Thailand – unemployment – caring responsibilities – previous compliant visit to Australia – decision under review remitted   

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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

2. The visa applicant applied for the visa on 13 July 2022. 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. The delegate refused to grant the visa on the basis that the visa applicant (the applicant) did not meet cl.600.211 because the delegate was not satisfied she genuinely intends to stay temporarily in Australia. 

5. The review applicant (the sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. Having regard to the decision record, the information provided to the Department and the information, submissions and documents provided to the Tribunal, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the applicant seeks the visa for the purposes of visiting her mother (the sponsor and an Australian Permanent Resident) and her step-father. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.231.

   Cl.600.211(a)

10. 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)).

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 600.612):

    ·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.

12. The Tribunal has considered the personal circumstances of the applicant who was born in 1994 and is currently 28 years of age.

13. The Tribunal has regard to the written submissions of the sponsor and her husband and the undated submission of the applicant as well as all other supporting documents. From this evidence, the applicant’s circumstances may be summarised thusly:

    ·the sponsor is the applicant’s mother. The sponsor is an Australian Permanent Resident married to an Australian citizen;

    ·the applicant has been unable to visit her mother and step-father in Australia due to the global pandemic.  She proposes to travel to Australia alone;

    ·the applicant claims to be responsible for the care of her grandfather (84 years old) and her younger brother (20 years old), both of whom comprise her household in Thailand. She also claims to be in a committed relationship of three years, citing these as the primary incentives for her to return to Thailand upon completion of her visit to Australia;

    ·the sponsor’s husband is a partner in a national accounting firm and a Justice of the Peace. He has offered his assurance that the applicant will comply with all visa conditions and will depart Australia before her visa expires;

    ·the applicant’s unemployment at the time of her visa application was the result of the global lockdown. She graduated from University in 2019. In January 2020 she was employed as a cashier in a private hospital, however that position was terminated in March 2021 due to the global lockdown and she was unable to find work for two years. During this time, and with financial support from the sponsor and her step-father, she set up a small on-line business selling baby clothes;

    ·the sponsor and her husband have agreed to provide all financial and material support to the applicant should the visa be granted and if the applicant requires it. They have also purchased a return air ticket for the applicant to return to Thailand at the end of her visit.

14. The Tribunal finds that the applicant has two family members in her household for whom she is responsible – her elderly grandfather and her brother; this factor alone provides a strong incentive for her to return to Thailand upon completion of her visit.  She also claims to be in a committed relationship of some three years.

15. The applicant previously travelled to Australia in 2011, along with her brother and there is no evidence of their breaching visa conditions during this visit. The Tribunal gives positive weight to the fact that the applicant and her brother appear to have substantially complied with their visa conditions during that visit to Australia and that they departed the country within the terms of such conditions.

16. The Tribunal is satisfied on the basis of the evidence that the sponsor and her husband will provide accommodation and financial support for the applicant during the proposed visit.

    Cl.600.211(b)

17. Taking the applicant’s personal circumstances and family responsibilities into account, the Tribunal is satisfied that the applicant intends to comply with all visa conditions that would accompany the visa. The Tribunal is also satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

18. The Tribunal is satisfied that the applicant does not intend to work, study or train while in Australia. The Tribunal is also satisfied that the sponsor and her husband will ensure that the applicant complies with all conditions of her visa should it be granted to her.

19. The Tribunal is satisfied the applicant has family ties and responsibilities in Thailand (being her grandfather, her brother and her extended family ) which act as incentives for her to return before the expiry of the visa, should it be granted.

    Cl.600.211(c)

20. The Tribunal has also considered all other relevant matters (cl.600.211(c)) and finds there is no evidence of other relevant issues in the case. 

21. For the above reasons the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa may be granted and finds that the requirements of cl 600.211 are met.

    DECISION

22. 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 of Schedule 2 to the Regulations.

    Stephen Conwell
    Member