Migration Review Tribunal Decision Summaries
Australian Immigration - Other Visas
January 2009
0805722
15 January 2009
Ms G Cullen, Member
TOURIST (CLASS TR) – SUBCLASS 676 – CL.676.211 – CL.676.221(2)(a) – GENUINE INTENTION TO VISIT – A delegate of the Minister for Immigration and Citizenship refused to grant the Australian immigration visa applicant a Tourist (Class TR) Subclass 676 visa on the basis that she did not satisfy cl.676.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied a genuine visit was intended. The Australian immigration visa applicant was a 48 year old woman from China who had been married to the review applicant for over 3 years. She claimed the purpose of her visit was to see her husband who was to undergo a cataract operation and for a holiday. The applicant had never entered Australia and had never applied for a spouse visa. Before the Tribunal, the applicant submitted that she would return to China because she was unemployed and needed her parents’ support and they needed her care. It was also submitted that if the applicant had wanted to come to Australia permanently, she would have applied for a spouse visa, as she was eligible to come as the review applicant’s spouse.
Held: Decision under review set aside.
The Tribunal accepted that the applicant’s reason for coming to Australia was to support her husband. It accepted that after the operation and recuperation, she wished to return to China to be with her parents to look after them and for their financial support. The Tribunal accepted that if the applicant had wanted to stay in Australia permanently she would have applied for a spouse visa. Medical evidence confirmed that the review applicant needed someone to take him home post-surgery and the Tribunal was satisfied that the period of intended stay was consistent with the stated purpose of the visit. The Tribunal was satisfied that the applicant’s intention to only visit was genuine and that she met cl.676.211 and cl.676.221(2)(a).
0806436
16 January 2009, Sydney
Mr D O’Brien, Principal Member
SPONSORED (VISITOR) (CLASS UL) – SUBCLASS 679 – CL.679.224 – GENUINE INTENTION TO VISIT – A delegate of the Minister for Immigration and Citizenship refused to grant the Australian immigration visa applicant a Sponsored (Visitor) (Class UL) Subclass 679 visa because the delegate found that she was unable to satisfy cl.679.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the Australian immigration Australian immigration visa applicant’s expressed intention to only visit Australia was genuine. The Australian immigration Australian immigration visa applicant, who resided in, and had never travelled outside, Lebanon was responsible for the daily care of her elderly father and had been previously refused a visa to visit Australia. Before the Tribunal, the review applicant provided evidence that she needed a short break from caring responsibilities, offered a personal guarantee and undertook to financially support the applicant’s visit to Australia. The Australian immigration visa applicantprovided evidence that she wished to visit family in Australia and would return to Lebanon to care for her dependent father, notwithstanding that she had other siblings residing in her home town.
Held: Decision under review set aside.
The Tribunal accepted that the applicant had a long-standing carer role and that her father was dependent upon her. This bond of attachment between the applicant and her father was a significant factor and a strong inducement encouraging the applicant to return to Lebanon. The Tribunal also found that the review applicant had a strong personality and exercised considerable influence over the Australian immigration visa applicantas her younger sister. The Tribunal noted that the current security situation in Lebanon was calm and that there was no evidence of any failure by the Australian immigration visa applicantto comply with the immigration laws of Australia or any other country. The review applicant had also previously sponsored other family members to visit Australia and successfully ensured compliance with their return obligations. The Tribunal found that the Australian immigration visa applicantsatisfied cl.679.224 and, since there was very little likelihood of the applicant remaining in Australia, Public Interest Criterion 4011 for the grant of the visa.
February 2009
0807206
12 February 2009, Melbourne
Mr N Pullen, Member
TOURIST (CLASS TR) – SUBCLASS 676 – CL.676.215 – CRITERION 3004 – COMPELLING REASONS – A delegate of the Minister for Immigration and Citizenship refused to grant the applicant a Tourist (Class TR) Subclass 676 visa on the basis that the applicant did not satisfy cl.676.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found the applicant was not the holder of a substantive visa at the time of application and did not satisfy Schedule 3 criterion 3004. The applicant claimed that he had supplied all documentation to his former migration agent to enable him to lodge an application for a Subclass 485 visa but that agent failed to submit his Subclass 485 visa application before the expiry of his student visa, resulting in that application being found invalid. He applied for a Subclass 676 visa as he believed it would enable him to apply for the Subclass 485 visa. The applicant claimed that the migration agent’s negligence was a compelling reason beyond his control.
Held: Decision under review affirmed.
The Tribunal found that the applicant did not hold a substantive visa at the time of application. The Tribunal noted that it was the responsibility of the applicant to ensure that his visa application was made before the expiration of his student visa notwithstanding the alleged negligence of the migration agent. The Tribunal did not accept that the conduct of the migration agent amounted to compelling reasons under criterion 3004(d) for not holding a substantive visa, or that there were any other compelling reasons such as a serious accident or illness. Accordingly, the Tribunal found that the applicant did not satisfy the requirements of criterion 3004 of Schedule 3 and did not meet cl.676.215 of Schedule 2 to the Regulations.
March 2009
0808958
6 March 2009, Sydney
Mr D O’Brien, Principal Member
SPONSORED (VISITOR) (CLASS UL) – SUBCLASS 679 (SPONSORED FAMILY VISITOR) – CL.679.224 – GENUINE VISIT – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 679 visa on the basis that she did not satisfy cl.679.224 of the Regulations. The Australian immigration Australian immigration visa applicant’s husband sponsored his wife as a visitor, not as a spouse. He suggested that she visit Australia and that he would follow her later to Vietnam and then live together. He did not own a home and had limited funds. He claimed it was difficult to successfully sponsor his wife on a spouse visa and the process involved too much time. He was unemployed, was awaiting a workers compensation payout and would receive the age pension in Vietnam. His wife lived in Vietnam with her mother and siblings, operated a small business from home and supported herself on her savings. She wanted to visit Australia because she missed her husband. She stated that she would respect the visa period specified and after she returned to Vietnam, her husband would join her. Her husband claimed that if the visa was not granted, he would go to Vietnam but his wife would never see Australia because she could not afford the trip.
Held: Decision under review affirmed
The issue for the Tribunal was whether the Australian immigration visa applicant’s intention to visit Australia was genuine. The overriding consideration was that the applicants were married. The Tribunal noted that the fact of their marriage and the Australian immigration visa applicant’s personal circumstances would encourage her to stay in Australia with her husband rather than return to Vietnam when her visa expired. She had no ongoing employment in Vietnam, her home business was casual and she had siblings who could take care of her elderly mother. The sponsor’s circumstances were relevant to the Australian immigration visa applicant’s intentions because they were married. His desire for companionship and the need to remain in Australia after the Australian immigration visa applicantreturned to Vietnam made it hard for the Tribunal to accept they both would not be strongly motivated to remain together in Australia beyond the period of the visa. The Tribunal was not satisfied that the expressed intention of the Australian immigration visa applicant to visit Australia was genuine. Accordingly, the Tribunal found the Australian immigration visa applicantdid not satisfy the requirements of cl.679.224.
0808307
13 March 2009, Melbourne
Mr G Robinson, Member
SPONSORED (VISITOR) (CLASS UL) – SUBCLASS 679 (SPONSORED FAMILY VISITOR) – CL.679.214 – RELATIVE – A delegate for the Minister refused to grant the Australian immigration visa applicant's Subclass 679 visas on the basis that they did not satisfy cl.670.214 as they were not sponsored by a relative who was a settled Australian citizen or settled permanent resident. The review applicant claimed that his wife was a temporary resident in Australia and did not qualify to sponsor her sister and her sister’s husband. However, he claimed that he was an Australian citizen and could act as a sponsor for his sister-in-law and brother-in-law. The review applicant claimed to be a busy businessman with little time to care for his pregnant wife. He stated that he intended the Australian immigration visa applicants to visit Australia to assist with his wife’s pregnancy and care for her and the baby.
Held: Decision under review affirmed
The Tribunal found that the primary Australian immigration visa applicant was the sister-in-law of the review applicant. As a sister-in-law or brother-in-law relationship did not fall within the definition of “relative” or “close relative” as defined in r.1.03 of the Regulations, the Tribunal found that the primary Australian immigration visa applicant was not sponsored in accordance with cl.679.214(a) of the Regulations. It further found that there was no suggestion that the review applicant was one of the types of persons set out in cl.679.214(b) and (c) who may also have acted as sponsors. Whilst sympathetic to the review applicant’s family situation, the Tribunal held it did not have the discretion to allow the application as proposed by the review applicant. Consequently, the Tribunal found that the applicant did not satisfy the requirements for cl.679.214 of the Regulations for the grant of the visa.
0801765
26 March 2009, Sydney
Ms K Raif, Member
WORKING HOLIDAY (TEMPORARY) (CLASS TZ) – CL.417.211 (WORKING HOLIDAY) – SEASONAL WORK – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 417 visa on the basis that he did not satisfy cl.417.211 of the Regulations because he had not carried out seasonal work in regional Australia for a total period of at least 3 months. The Australian immigration visa applicant claimed to have entered Australia on a Working Holiday visa and completed a 12 week fruit picking job so that he could remain for another year. He claimed he had worked five to six weeks on a Juicy Grapes farm when his employer, who knew that he was working for the 12 week period to extend his working holiday, offered him work with Garraway Earthmoving repairing dams. He claimed he then worked a further six weeks fixing dams. The applicant stated that he accepted the offer, thinking that he was helping the farmer, and assumed that this was a continuation of his previous work and would count towards the 12 weeks seasonal work.
Held: Decision under review affirmed
The Tribunal accepted that the applicant had previously entered Australia on a working holiday visa. It noted the definition of “seasonal work” appeared in cl.417.111, being any type of work undertaken as the employee of a primary producer. It further noted the legislation offered no definition of “primary producer”, but the Macquarie Dictionary defined the term as “someone who works in a primary industry as a farmer, a fisher, etc. or a business or industry devoted to primary production”. The Tribunal found that the applicant’s work for Garraway Earthmoving was work for a dam construction company. It held that while the dams may have been constructed for use by the farmers, construction of a dam was not work in a primary industry or a business devoted to primary production. Nor did the fact that the applicant lived with the farmers render the dam construction business a primary business. As such, the Tribunal was of the view that Garraway Earthmoving was not a “primary producer”. The Tribunal also considered guidance in the relevant Legislative Instrument, that the repair of dams was not work that constituted seasonal work. The Tribunal was not satisfied that any of the employment performed by the applicant, other than his employment for Juicy Grapes, was seasonal work and found the five or six weeks he worked for the farm was not a period of at least three months. The Tribunal acknowledged the applicant’s argument that he performed the work on the dam in good faith and expected the farmer to be aware of the visa requirements; however, it had no discretion with respect to those matters. Accordingly, the Tribunal was not satisfied that the Australian immmigration visa applicant met the requirements of cl.417.211(5) of the Regulations for the grant of the visa.
April 2009
0804426
9 April 2009, Sydney
Mr T Delofski, Member
OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 116 (CARER) – CL.116.221 – R.1.15AA(1)(e) – ASSISTANCE FROM AUSTRALIAN RESIDENT OR COMMUNITY SERVICES – A delegate of the Minister refused to grant the Australian immmigration visa applicant a Subclass 116 visa on the basis that he did not satisfy cl.616.212 and cl.116.221 of the Regulations. The Australian immigration visa applicant claimed to be a carer of the review applicant, his father and an Australian citizen. The sponsor was the review applicant’s wife, the applicant’s mother and an Australian citizen. The review applicant had four children and a brother and his family who were all resident in Australia. His children resident in Australia described their current circumstances and claimed they were unable to provide the requisite care to their father. The sponsor claimed that the review applicant had minimal contact with his brother and his family who would not be willing to provide the requisite care to the review applicant. She claimed that the Australian immigration visa applicant was both willing and able to provide to the review applicant substantial and continuing assistance of the kind needed and he had provided care to his father when he was in Fiji. Furthermore, the sponsor claimed the review applicant was on a long waiting list for home care services and was unlikely to be eligible for such community services for a considerable time. The sponsor stated that, given her current full-time employment in the aged care sector, she was familiar with the assistance from welfare, hospital, nursing or community services available in their region. She claimed that there were no services reasonably obtainable that provided the sort of culturally sensitive care that the review applicant needed.
Held: Decision under review set aside
The Tribunal accepted that the Australian immigration visa applicant claimed to be the carer of the review applicant. The Tribunal accepted all of the sponsor’s claims. Based on the evidence, the Tribunal was satisfied that the review applicant could not reasonably obtain assistance from any other relative being an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The Tribunal was also satisfied that the review applicant could not reasonably obtain assistance from welfare, hospital, nursing or community services in Australia. Therefore, the requirements of r.1.15AA(1)(e)(i) and (ii) were met. Accordingly, the Tribunal was satisfied that, at the time of decision, the Australian immigration visa applicant was a carer of the Australian relative, being the review applicant, and met cl.116.221.
0808289
30 April 2009, Sydney
Ms A MacDonald, Senior Member
CLASS 812 TRANSITIONAL PERMANENT – R.131A – R.9 – REMAINING RELATIVE – A delegate of the Minister refused to grant the applicant a Class 812 visa on the basis that the Australian immigration visa applicant did not satisfy r.131A of the Regulations as she did not meet the definition of a remaining relative as at the specified date of 15 October 1990. The original notification issued in 1995 refusing the grant of this visa was later found to be invalid and the applicant was re-notified in 2008. The Australian immigration visa applicant claimed that on 15 October 1990, she was a remaining relative of her sister and that she has continued to be so. She claimed that she entered Australia in 1982 and remained after her temporary entry permit expired. No further visas were granted to her. The Australian immigration visa applicant claimed that, at that time, her mother and 6 of her 7 sisters lived in Australia and were either Australian permanent residents or Australian citizens. The Australian immigration visa applicant’s brother claimed he lived in Australia and became an Australian permanent resident in 1992 on the basis of his spousal relationship. The Australian immigration visa applicant claimed that, on 15 October 1990, one of her sisters was a Fijian citizen and a permanent resident of Germany who lived in London. She claimed this sister visited Australia on 5 occasions prior to the date of her visa application during which she saw and spoke with her as they were quite close. The Australian immigration visa applicant’s representative requested referral to the Minister for consideration under s.351 of the Act based on compelling and compassionate circumstances, claiming that the delay in notifying the Australin immigration visa applicant of the decision had created a strong dependency by their now aged mother upon the applicant. The Australin immigration visa applicant claimed that her mother was 78 years old and in poor health and that she had lived with her for many years. The Australin immigration visa applicant claimed that she had lived in Australia for almost 27 years and that she had become well integrated into the Australian community during that time and that she had no immediate family remaining in Fiji.
Held: Decision under review affirmed
The Tribunal found that the Australin immigration visa applicant was a prohibited non-citizen before 18 December 1989 and met r.131A(1)(a). The Tribunal was satisfied that, on 15 October 1990, the Australin immigration visa applicant’s brother’s intention was to reside in Australia permanently having met his wife and having decided to marry her. The Tribunal found that he usually resided in Australia on 15 October 1990 and that he continued to do so. The Tribunal was satisfied that the Australin immigration visa applicant’s sister, who was living in London, was an overseas near relative. Based on the information regarding her sister’s visits to Australia, the Tribunal was satisfied that the applicant’s contact with her was communication in the sense of a social relationship. The Tribunal found that the Australin immigration visa applicant was disqualified from being a remaining relative because she had contact with an overseas near relative during a reasonable period preceding her application. Therefore, the Tribunal found she was not a remaining relative within the meaning of r.9 and that she did not meet the requirements of r.131A(1)(d)(iv)(D). Accordingly, the Tribunal found that the applicant did not meet r.131A of the Regulations for the grant of the visa.
May 2009
0901476
6 May 2009, Sydney
Ms P Wearne, Member
TOURIST (SHORT STAY) (CLASS TR) – SUBCLASS 676 (TOURIST) – CANCELLATION – S.116(1)(b) – CONDITION 8101 – NO WORK – A delegate of the Minister cancelled the Australin immigration visa applicant’s Subclass 676 visa under s.116(1)(b) of the Act on the basis that the applicant breached Condition 8101 because he had engaged in work in Australia. Police records showed that the Australin immigration visa applicant was located with his truck and materials for bitumen work and drums of tar, work boots, tools and a contractor pass. The Australin immigration visa applicant claimed that the boots were for his classic cars hobby, that he had owned the tools for years, that the drums contained diesel and water and that the contractor pass was in the truck when he bought it. The police confirmed the drums contained tar and the Australin immigration visa applicant admitted to them that he had been working. The tar and implements indicated he laid bitumen on road surfaces. The delegate found that this was an activity which normally attracted remuneration and that it constituted work. The Australin immigration visa applicant claimed to be in Australia to see the country. When asked the degree of hardship caused by the visa cancellation, the Australin immigration visa applicant indicated that his son was born in Australia and his family would be disappointed if his visa were to remain cancelled.
Held: Decision under review affirmed
The Tribunal considered whether to exercise its discretion not to cancel the visa. Information before the Tribunal indicated that the Australian immigration visa applicant had departed Australia following the lodgement of his application for review. Accordingly, the Tribunal proceeded to make a decision on the information before it. The Tribunal found that, based on the evidence, the Australin immigration visa applicant had engaged in an activity which normally attracted remuneration in Australia. Therefore, the Tribunal considered that this constituted ‘work’ and that the Australin immigration visa applicant had breached condition 8101 (no work) of his visa. Evidence before the Tribunal indicated that there were barrels of tar found in the applicant’s car and this suggested a repetitive pattern of work. However, in the absence of further evidence, the Tribunal was unable to determine the extent of the breach. There was no information before the Tribunal regarding the existence of compelling or compassionate circumstances or details of the applicant’s behaviour towards the Department. Consequently, the Tribunal was satisfied that the grounds for cancellation of the visa existed under s.116(1)(b) and that the visa should remain cancelled.
0901814
28 May 2009, Melbourne
Ms S Muling, Member
SPONSORED (VISITOR) (CLASS UL) – SUBCLASS 679 (SPONSORED FAMILY VISITOR) – CL.679.224 – CL.679.228 – GENUINE VISIT – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 679 visa on the basis that she did not meet cl.679.224 and cl.679.228 of the Regulations. The delegate was not satisfied that the Australian immigration visa applicant had provided sufficient evidence of family ties, economic incentives or general cultural links in Cambodia to ensure her return at the expiration of her visa. The review applicant claimed that she had lived with her aunt, the Australian immigration visa applicant, and her uncle from a young age after her mother died. She claimed that she and her husband own a business in which they both work and she also looks after their children. She claimed that she has plans to reduce her work hours to show the Australian immigration visa applicant around Australia when she visits. She claimed that the Australian immigration visa applicant owns a house in Cambodia from which the family have operated a business for over 60 years. The Australian immigration visa applicant makes coffee and her brother’s specialty is noodles. The Australian immigration visa applicant claimed that she misses the review applicant and that she thinks of the review applicant’s children as her grandchildren. She claimed that her friends visit her shop every day and that this is part of her life. Therefore, she has to go back to socialise with her own people. The Australian immigration visa applicant stated that her brother is her only family in Cambodia and that the review applicant lived with them until she married and moved to Australia. The Australian immigration visa applicant stated that she only wanted to visit Australia to see her niece and her family and that she would return to Cambodia at the end of her visit. Statements in support of the application were also provided.
Held: Decision under review set aside
The Tribunal accepted the applicant’s evidence and found that the proposed duration of the visit of up to 3 months was consistent with the expressed purpose of the Australian immigration Australian immigration visa applicant’s visit to Australia. It considered the Australian immigration Australian immigration visa applicant’s significant ties in Australia but had regard to the fact that the Australian immigration visa applicant and her brother had lived together all their lives and that they shared a home and a business. The Tribunal noted that the review applicant’s mother in-law returned to Cambodia after spending a year in Australia and accepted that the review applicant would not jeopardise the ability of other family members to visit by allowing the Australian immigration visa applicant to remain in Australia beyond the expiration of her visa. It found that the Australian immigration visa applicant had strong family ties in Australia but that her ties to Cambodia were just as strong. The Tribunal gave weight to the Australian immigration visa applicant’s ownership of a small business of which she is an integral part and the property which she owns and leases out. It was satisfied that the Australian immigration visa applicant did not have any intention to remain beyond the period of her permitted stay and that her intention to visit was genuine. The Tribunal found that the Australin immigration visa applicant was not subject to the risk factor in cl.4011(2)(a) as there was no evidence that during the five years immediately preceding the application the Australian immigration visa applicant applied for a visa or entry permit for permanent residency in Australia. Accordingly, the Tribunal found the Australian immigration visa applicant satisfied the requirements of cl.679.224 and Public Interest Criterion 4011 of cl.679.228 of the Regulations.
0808588
23 May 2009, Sydney
Dr S Crosdale, Member
PROSPECTIVE MARRIAGE (TEMPORARY) (CLASS TO) – SUBCLASS 300 (PROSPECTIVE MARRIAGE) – S.116 – CANCELLATION – EXERCISE OF DISCRETION – A delegate of the Minister cancelled the Australian immigration visa applicant’s Subclass 300 visa under s.116(1)(a) of the Act on the basis that his relationship with the sponsor had ceased and therefore, the circumstances which permitted the grant of the visa no longer existed. The Australin immigration visa applicant claimed that he met the sponsor one week prior to returning to Lebanon on a previous visit to Australia to see his family. He stated that the purpose of his current visit to Australia was to marry the sponsor and not to study. He claimed that about one month after his arrival, the sponsor ended the relationship. He had hoped they would get back together but he heard that she became engaged to someone else. The Australian immigration visa applicant’s representative claimed that the applicant had suffered a lot from the sponsor’s treatment because he had discontinued his studies in Lebanon, he lost a lot of money and he had his dreams shattered through no fault of his own. The applicant stated that after his broken engagement many girls had wanted to become engaged to him but he did not want to become engaged just to remain in Australia. The applicant and his sister claimed the break up of the relationship had caused him to become scared of another relationship or engagement. Furthermore, he claimed he had lost money in paid university fees in Lebanon, in planning the wedding and bringing gold and gifts to Australia. The applicant later admitted he did not lose a lot of money as he only completed one week of law studies in Lebanon and the sponsor returned the gifts to him. The applicant claimed he would suffer hardship in relation to his law course. He had been a law student in Lebanon and if he returned to Lebanon he would have to start his studies again. He claimed he would have wasted two years of his life as the education in Australia differed from the education in Lebanon and he wished to study in Australia.
Held: Decision under review affirmed
The Tribunal was satisfied that the circumstances that permitted the grant of the visa no longer existed as the Australian immigration visa applicant confirmed that his relationship with the sponsor had ceased and that he believed she had become engaged to someone else. Thus, the Australian immigration visa applicant’s visa was subject to cancellation pursuant to s.116(1)(a). Accordingly, the Tribunal considered whether to exercise its discretion to cancel the Australian visa having regard to relevant policy, circumstances, the purpose of the visa holder’s travel to and stay in Australia and the degree of hardship which may have been caused to him and to any family members. Based on the Australian immigration visa applicant’s and his sister’s evidence regarding his relationship with the sponsor, the Tribunal gave little weight to concerns that the engagement was contrived for migration purposes. It accepted the evidence provided by the Australian immigration visa applicant and his sister that the applicant had suffered distress following the breakdown of his relationship with the sponsor. However, the Tribunal had difficulty believing the Australian immigration visa applicant would suffer hardship in relation to his law studies as he had only studied in Lebanon for one week. The Tribunal noted that the Australian immigration visa applicant was a young man, that he had family in Lebanon and that he was not at a stage of life where returning to his home country would cause him any disadvantage in re-establishing relationships, recommencing his studies and to his economic future. It found that even if the visa was not cancelled, the Australian immigration visa applicant would not be in a better position as his visa would no longer be in effect and he would be required to leave Australia. The Tribunal found that the power to cancel the visa should be exercised. Considering the circumstances as a whole, the Tribunal concluded that the visa should remain cancelled.
June 2009
0800719
19 June 2009, Sydney
Mr J Cipolla, Member
INVESTOR RETIREMENT (TEMPORARY) (CLASS UY) – SUBCLASS 405 (INVESTOR RETIREMENT) – CL.405.227 – NET VALUE OF ASSETS, ANNUAL NET INCOME AND DESIGNATED INVESTMENT – A delegate of the Minister refused to grant the applicant a Subclass 405 visa on the basis that she did not provide evidence of sufficient funds to satisfy the requirements of cl.405.227(2) and 405.227(4) of the Regulations. The applicant claimed that her husband was deceased and she provided evidence that she had AUD629,720 available for transfer. The applicant’s migration agent submitted that if an applicant satisfied that their assets, available for transfer and capable of being transferred to Australia was at least AUD500,000, then the same funds could be used to make a designated investment of an amount of at least AUD500,000. The migration agent submitted that “the only support the Department had offered for its view on the legislation was its own opinion, albeit sourced at the Departmental National Office as you put it. However, the view of the Departmental National Office has not been formulated as a consistent part of policy within the PAMS or Migration Series Instructions or indeed put before parliament as a disallowable instrument. To this extent we would submit that the Department’s view is no more than an ipsi dixit contention”. He further submitted that, for this reason, cl.405.227(2)(a) and (c) are capable of being cumulatively read and that the applicant would then meet the requirements for this subclass of visa. The delegate refused the visa on the basis that the same funds cannot satisfy the requirements at both cl.405.227(2)(a) and (c). These are separate criteria that refer to separate funds.
Held: Decision under review affirmed
The Tribunal accepted that the applicant had assets to the value of AUD665,069 that were capable of being transferred to Australia at the time of its decision and therefore, it found that the applicant satisfied cl.405.227(2)(a). It noted that the argument to date had centred around the cumulative reading of cl.405.227(2)(a) and (c); however, the applicant also needed to satisfy cl.405.227(2)(b) which requires that the applicant has access to an annual net income of at least AUD50,000. There was no evidence before the Tribunal that the applicant had access to an annual net income of at least AUD50,000. Accordingly, the Tribunal found that the applicant did not satisfy cl.405.227(2)(b). The Tribunal also noted that no convincing argument had been provided that the regulatory provision in question was capable of being read cumulatively with regard to cl.405.227(2)(a) and (c). The argument posited by the representative was that, if an applicant had at least AUD500,000 at their disposal that was capable of being transferred to Australia, there was nothing within the regulatory provisions which precluded those same funds being used to form the designated investment with the relevant regional sponsoring authority. However, with regard to the drafting of the provision and what the Tribunal considered to be the underlying legislative intent, it considered that its intent was that an applicant for an Investor Retirement visa be able to satisfy the provisions of cl.405.227(2)(a), (b) and (c). The legislative provision was drafted in such a way that an applicant was required to satisfy each of these provisions and it was not an either/or provision. The Tribunal noted that if it was to proceed to a decision in favour of the applicant, on its reading of the regulatory provision, cl.405.227(2)(a), (b) and (c) would need to be satisfied. There was no evidence before the Tribunal with regard to cl.405.227(2)(b), namely that the applicant has access to an annual net income of at least AUD50,000. Accordingly, the Tribunal affirmed the decision not to grant the applicant an Investor Retirement (Class UY) visa as she was incapable of meeting the requirements of cl.405.227(2) of the Regulations.
0902299
24 June 2009, Melbourne
Ms L Kirk, Senior Member
SPONSORED (VISITOR) (CLASS UL) – SUBCLASS 679 (SPONSORED FAMILY VISITOR) – CL.679.224 – A delegate of the Minister refused to grant the Australian immigration visa applicant a subclass 679 visa on the basis that she did not satisfy cl.679.224 of the Regulations because she was not satisfied that the applicant genuinely intended only to visit Australia. The Australian immigration visa applicantis a 53 year old national of Sudan from Kassala State. She was widowed with one child, the review applicant. The stated purpose of the visit was for the Australian immigration visa applicantto visit her daughter who has a newborn baby and two other children. In refusing the visa, the delegate found that the Australian immigration visa applicant had not provided evidence of sufficient personal, financial or employment incentives to return to Sudan. The review applicant told the Tribunal that she had returned to Sudan to visit her mother in 2006 and her son had become very ill and had to be hospitalised. For this reason, she did not want to return to Sudan again. The Australian immigration visa applicant claimed that she has lived with her elderly mother for whom she has cared for many years. She lives in a house with four rooms, two of which she rents out to people in need of short-term accommodation. When the rooms are vacant the review applicant sends money to assist the Australian immigration visa applicant. The Australian immigration visa applicant claimed to have traveled outside Sudan on two occasions; to visit her sister in Cairo in 2007 and to undertake a religious pilgrimage in Saudi Arabia in 2004. On these occasions, she claimed to have hired a maid servant to live at her house to care for her mother. She claimed that she would make a similar arrangement for her mother during her proposed visit to Australia. The Australian immigration visa applicant claimed to live in a peaceful area of Sudan with no conflict. The review applicant told the Tribunal that during her stay, the Australian immigration visa applicant would help her around the house and with the children. She claimed that the Australian immigration visa applicant would return to Sudan to look after her mother as she is her sole carer.
Held: Decision under review set aside
The Tribunal found the review applicant and the Australian immigration visa applicant to be honest, credible and forthright witnesses. Based on their oral evidence and the Australian immigration visa applicant’s bank account statements, the Tribunal was satisfied that the Australian immigration visa applicant received rental income from tenants sufficient to meet her and her mother’s living expenses. The Tribunal gave weight to the Australian immigration visa applicant’s ownership of her house and to the short-term leasing of two of its rooms. The Tribunal took into account independent information demonstrating that due to Kassala State’s acute poverty, drought, famine, unemployment and land degradation, rebel insurgency had been of low intensity for over a decade. The Tribunal accepted that the Australian immigration visa applicant missed the review applicant and her grandchildren. It also accepted that the review applicant had reservations about taking her family to see the Australian immigration visa applicant in Sudan due to health risks. The Tribunal took into account the Australian immigration visa applicant’s significant family ties in Australia but also had regard to the fact she was the sole carer of her elderly mother who had lived with her for nearly 40 years. The Tribunal also noted that on two previous occasions when the Australian immigration visa applicant had traveled outside Sudan, she had returned home to care for her mother. The Tribunal was satisfied that the Australian immigration visa applicant had a very strong motivation to return to Sudan at the expiry of her visa in order to continue to live with and care for her mother. The Tribunal found that the proposed duration of the visit for up to six months was consistent with the expressed purpose of the Australian immigration visa applicant’s trip to Australia, and that her intention was to depart Australia prior to the expiry of her visa. Accordingly, the Australian immigration visa applicant was taken to have met cl.679.224 of the Regulations.
July 2009
0902921
24 July 2009, Perth
Ms L Ward, Member
EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) – SUBCLASS 857 (REGIONAL SPONSORED MIGRATION SCHEME) – CL.857.311 – DEPENDENT CHILD – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 857 visa on the basis that he did not satisfy cl.857.311 of the Regulations because he had turned 18 and was found not to be wholly or substantially dependent on his father for his basic needs. Therefore, he was not found to be a dependent child of the family head or a member of his family unit at the time of application. The Australian immigration visa applicant’s father, mother and two siblings were granted permanent residence through Subclass 857 visas. In support of the review, the Australian immigration visa applicant submitted evidence of his periods of employment and unemployment in the 12 months prior to the visa application. The Australian immigration visa applicant and his mother gave evidence to the Tribunal that the Australian immigration visa applicant had been unemployed and living with his family for 5 months (November 2007-April 2008). He was then employed for 4.5 months (April-September 2008), unemployed for 1.5 months (September-October 2008), and employed for 1 month (November 2008). The Australian immigration visa applicant claimed that in March 2007 he had moved away from his family to Perth, as his parents could not afford to send him to TAFE at that time and there were no local jobs. The Australian immigration visa applicant provided the Tribunal with evidence that at the time of review he was unemployed, living at home and about to commence a 6 month TAFE course, after which he was considering studying for a diploma.
Held: Decision under review set aside
The Tribunal found that at the time of its decision the Australian immigration visa applicant was 21 years old, lived with his family and was unemployed. The Australian immigration visa applicant’s father worked full time and supported the applicant financially. On the basis of the documentation submitted to the Department and the sworn evidence of the Australian immigration visa applicant and his mother, the Tribunal found that, at the time of application, the Australian immigration visa applicant had been unemployed for 6.5 months in the preceding 12 months. The Tribunal found that during those periods of unemployment, the Australian immigration visa applicant lived in the family home, had no income and had all expenses for his basic needs for food, shelter and clothing met by his father. The Tribunal noted that there is no definition in the Regulations of what constitutes a ‘substantial period’ in relation to the length of the applicant’s whole or substantial dependence on his father. The Tribunal was of the view that the Australian immigration visa applicant’s 6.5 month period of dependency, out of the 12 months preceding the visa application, was a substantial period in the circumstances of the case. The Tribunal noted that the applicant was unable to commence his studies in 2007 as his father was unable to support him because he was not permitted to work for various periods. Consequently, the Australian immigration visa applicant obtained casual employment on several occasions. The Tribunal found that the Australian immigration visa applicant’s father was now able to support the applicant’s studies and accordingly, the Australian immigration visa applicant had resumed his dependence on his parents with the state of dependency likely to continue for 6 to 18 months. Based on the evidence, the Tribunal was satisfied that the Australian immigration visa applicant was a dependent child of his father’s and therefore a member of his father’s family unit. The Tribunal remitted the application finding that the Australian immigration visa applicant met the criteria for a Subclass 857 (Regional Sponsored Migration Scheme) visa.
August 2009
0904457
18 August 2009, Sydney
Ms B Connolly, Member
SPONSORED (VISITOR) (CLASS UL) – SUBCLASS 679 (SPONSORED FAMILY VISITOR) – CL.679.224 – GENUINE VISIT – A delegate of the Minister refused to grant the applicant a Subclass 679 visa on the basis that she did not meet cl.679.224 of Schedule 2 to the Regulations. The delegate was not satisfied that the Australian immigration visa applicant intended a genuine visit to Australia to see her daughter and grandchildren as she was a widow with no dependent family members in Iran, was not employed, and had provided no evidence of previous employment or any fixed assets. Therefore, the delegate found that the Australian immigration visa applicant did not have sufficient incentives to return to Iran within the validity of her visa. The review Australian immigration visa applicant submitted to the Tribunal that her mother had not visited Australia in eleven years and that she hadn’t seen her grandchildren since they were young. She claimed that the Australian immigration visa applicant was now quite old and may not get another chance to see them. The review applicant claimed that the Australian immigration visa applicant lives in Tehran with her adult daughter who was divorced, and that the Australian immigration visa applicant would return to Iran as it was not socially acceptable for her unmarried daughter to live on her own. She also has another married daughter who lived nearby. She claimed that the Australian immigration visa applicant would pay for the airfare to come to Australia, and that she had complied with all of her visa requirements when she last visited eleven years ago. The Tribunal also received copies of a number of personal documents, including passports, ID cards and bank details.
Held: Decision under review set aside
The Tribunal found that whilst the Australian immigration visa applicant was unemployed and had no property, it accepted that she had security of tenure over her property and that she had income from a pension fund. The Tribunal accepted the evidence that the absence of the Australian immigration visa applicant from Tehran would pose significant problems for her divorced daughter, who would face adverse societal and cultural reactions if she were to live alone without her mother. The Tribunal noted that there were personal circumstances in the form of familial links which might have encouraged the Australian immigration visa applicant to remain in Australia however, the Tribunal accepted the evidence before it that there were strong incentives to return to her daughters in Iran which outweighed any desire to stay in Australia. The Tribunal accepted that the Australian immigration visa applicant wished to visit and spend time with the review applicant and her family as they have not seen her for many years. The Tribunal found that the proposed duration of her stay of three months was consistent with the purpose of her proposed visit. The review applicant confirmed her intention to provide the Australian immigration visa applicant with accommodation and any financial needs she may have in relation to the visit, and the Tribunal was satisfied that she was in a financial position to do so.The Tribunal also accepted that there was no evidence of any security or political problems in the area where the Australian immigration visa applicantlived. Accordingly, the Tribunal was satisfied that the Australian immigration visa applicant’s intention only to visit Australia was genuine and found that the Australian immigration visa applicant satisfied the requirements of cl.679.224.
0901999
21 August 2009, Sydney
Mr D O’Brien, Principal Member
CULTURAL/SOCIAL (TEMPORARY) (CLASS TE) – SUBCLASS 421 (SPORT) VISA – CL. 421.222 & CL.421.224 – A delegate of the Minister refused the visa application as the delegate found the applicant did not satisfy cl.421.224 as his sponsorship had been withdrawn. The Australian immigration visa applicant previously held a Subclass 421 visa which ceased and he then applied for a further Subclass 421 visa. His written submission asserted that sponsorship of him by Elouera Tony Mundine Gym (the Gym), was still in force. The Australian immigration visa applicant claimed he is a professional boxer in the Bantamweight Division and that he is presently ranked 5th in Australia. He claimed he has another 3 or 4 years left in him as a boxer and that he still boxes out of the Gym where he is managed and coached by the Gym Manager. The Australian immigration visa applicant claimed that his next bout was a supporting bout planned for October and would feature Tony Mundine. The Australian immigration visa applicant claimed he trained and helped at the Gym which includes training young boxers. He claimed he receives a modest payment for his assistance, that his earnings from competitive boxing are enough to support him, and that a family provides his accommodation. The Australian immigration visa applicant claimed that he had recently gained accreditation from the Australian Institute of Sport as a Level 1 Boxing Coach. He attended a course run by the AIS, passed a test and is seeking to gain higher level qualifications as a coach. He claimed he enjoys working in the Gym with the young kids in the Redfern area, and that this helps to keep them out of trouble. He confirmed to the Tribunal that he still has the return ticket which he used to travel to Australia. Evidence of the previous sponsorship agreement between the Gym and the applicant were such that it was not abundantly clear the agreement was still in force but a fresh sponsorship agreement was supplied by the applicant after the Tribunal hearing.
Held: Decision under review set aside.
The Tribunal found the Australian immigration visa applicant satisfied cl.421.222(2)(a) because he entered as an individual in professional boxing bouts in Australia. It also found he satisfied cl.421.222(2)(b) as he had sufficient money from his professional bouts and his earnings as an assistant at the Gym to support himself. It also found that he received support from the family who accommodated him and he has a return ticket enabling his return to Papua New Guinea. The Tribunal found it was unnecessary to make a finding on whether the Australian immigration visa applicant might also satisfy cl.421.222(3) on the basis of his appointment through the Gym to assist with training other members of the Gym Manager’s team. On the basis of the sponsorship agreement supplied to the Tribunal by the Gym in which the sponsorship obligations are set out, the Tribunal found that the sponsorship requirement in relation to the Australian immigration visa applicant had been met for the purposes of paragraph (c) of cl.421.224. Accordingly, the Tribunal found the Australian immigration visa applicant satisfied the requirements of cl.421.224 of the Regulations.
September 2009
0803068
1 September, 2009, Melbourne
Ms M Cameron, Member
WORKING HOLIDAY (TEMPORARY) VISA – (CLASS TZ) – SUBCLASS 417 – CL.417.211 – SEASONAL WORK – REGIONAL AUSTRALIA – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 417 visa because she was not satisfied that the applicant had carried out seasonal work in regional Australia within the meaning of cl. 417.211(5) of the Regulations. The Australian immigration visa applicant claimed he worked as a driver/exploration worker in the mining industry in Western Australia after he was given multiple assurances from Departmental officers that this work was classified as ‘seasonal work’ within the Regulations. He claimed that at the time he had sought advice from the Department on lodging the visa application; mining had been included as a relevant occupation. The applicant’s partner confirmed that she had been present at the Department’s offices in Perth on two occasions when the applicant had been assured that work in the mining industry would meet the work requirement for the visa sought. Although they had explored other visa options such as a partner visa, they had found that because the Australian immigration visa applicant did not hold a substantive visa, he could not be granted a Partner visa while he is in Australia. The applicant claimed that his close family members live in Australia and he has no strong ties to the United Kingdom now. He also claimed that he considered it unfair that he had been refused the visa after he had received multiple assurances from the Department that the work he undertook would meet the requirements for this type of visa.
Held: Decision under review affirmed.
The Tribunal found the Australian immigration visa applicant to be a credible witness who undertook mining work because he believed it enabled him to meet the criteria for a Working Holiday visa. The Tribunal was satisfied that the Australian immigration visa applicant had worked in a mining position for more than 3 months while he was the holder of a Working Holiday visa. However, the Tribunal found that, at the time of the visa application, mining was not included in the specification of seasonal work as set out in the relevant instrument. The Tribunal also found that the relevant postcode was not a postcode considered to be in ‘regional Australia’ as stated in the relevant Gazette Notice. The Tribunal therefore found that the applicant had not carried out seasonal work in regional Australia while he was the holder of his first Working Holiday visa. Accordingly, the Tribunal found that the Australian immigration visa applicant did not meet the requirements of cl. 417.211(5) of the Regulations and the Tribunal affirmed the decision under review.
0903857
24 September 2009, Sydney
Ms A O’Toole, Member
SPONSORED (VISITOR) (CLASS UL) – SUBCLASS 679 – (SPONSORED FAMILY VISITOR) – CL.679.224 – GENUINE VISIT – The review applicant claimed that he wished for the Australian immigration visa applicant to travel to Australia from Tonga in the company of his grandmother, who was the review applicant’s mother-in-law who had already been granted her tourist visa. It was claimed that the Australian immigration visa applicantwould like to visit Australia because his younger brother had joined the army and is due for his marching out parade. The review applicant claimed that the Australian immigration visa applicant’s brother is due to go to Iraq next year, and that it is very important for his younger brother to have his only brother present at this parade. The Australian immigration visa applicant had previously applied for a visitor visa in 2007 which was refused. The review applicant claimed that the Australian immigration visa applicant would be provided accommodation and support by them should he be granted a visa to travel to Australia, and that he had held the same job in Australia for over 20 years. It was claimed that the Australian immigration visa applicant worked on the family’s 12-acre property in Tonga where they grew bananas, sugar cane, papaya and other fruits and vegetables, and that he would return to Tonga to look after his grandmother. The review applicant claimed that he would ensure that the Australian immigration visa applicant would abide by his visa conditions.
Held: Decision under review set aside.
The Tribunal accepted that the Australian immigration visa applicant lived with his grandmother in Tonga, that he cares for her and that the Australian immigration visa applicant would be visiting his mother and siblings in Australia. The Tribunal accepted that the Australian immigration visa applicant’s expenses during his visit would be met by the review applicant and his wife, and that the review applicant would provide the Australian immigration visa applicant with accommodation, food and financial support as required and that the Australian immigration visa applicant would have access to sufficient funds for the duration of his visit. The Tribunal stated that it was impressed by the evidence of the review applicant and it was of the view that he spoke truthfully. The Tribunal accepted that the Australian immigration visa applicant’s mother has not seen the Australian immigration visa applicant since 2005 and that financial difficulties endured by the family in Australia meant that they could not travel to Tonga. The Tribunal considered that this case was unusual due to the Australian immigration visa applicant’s brother joining the army and being due to start a tour of duty in Iraq. It found that there was no evidence before the Tribunal that the review applicant had previously sponsored a Australian immigration visa applicant who breached the visa conditions or that any member of the Australian immigration visa applicant’s family had breached any visa conditions in the past. The Tribunal accepted the evidence of the review applicant and the Australian immigration visa applicant’s mother that they would ensure that the Australian immigration visa applicant would not breach any of his visa conditions should he travel to Australia. The Tribunal was satisfied that it was the intention of the Australian immigration visa applicant to travel to Australia with his grandmother and to return with her to Tonga at the appropriate time, and that the Australian immigration visa applicant’s intention to visit his family in Australia was genuine. Accordingly, the Tribunal found the Australian immigration visa applicant satisfied the requirements of cl.679.224 of the Regulations.
0905047
29 September 2009, Sydney
Ms M Ford, Member
SPONSORED (VISITOR) (CLASS UL) – SUBCLASS 679 (SPONSORED FAMILY VISITOR) – CL.679.224 – GENUINE INTENT TO ONLY VISIT – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 679 (Sponsored Family Visitor) visa because he was not satisfied that the applicant genuinely intended to visit Australia only temporarily. The delegate found that the Australian immigration visa applicant had recently lodged an application for a Contributory Parent (Migrant) visa, and that this indicated her intent to reside in Australia on a permanent basis. The delegate found that this, combined with the ongoing civil violence and volatile security situation in Sri Lanka, indicated that the Australian immigration visa applicant may seek to remain in Australia after the expiration of her visa. The Australian immigration visa applicant was sponsored by her daughter, the review applicant. The Australian immigration visa applicant claimed that she wished to travel to Australia to assist her daughter with the care of her newborn baby for a couple of months. She submitted evidence of financial investments in Sri Lanka, and a statutory declaration stating that she cares for her chronically ill sister in Sri Lanka as well as her daughter and eight year old grandson. Evidence was submitted demonstrating that the Australian immigration visa applicant’s sister had previously had cardiac surgery, that she continues to be unwell and that her prognosis is such that she will not survive the next five years. The review applicant claimed that she had been advised the Australian immigration visa applicant’s application for permanent residency would take two years to be processed and then her mother would have five years before she has to enter Australia. She claimed that the Australian immigration visa applicant would not leave Sri Lanka while her sister is alive. The review applicant claimed that her mother lives in Colombo and is not politically active and therefore political instability and security issues in Sri Lanka are not relevant to her safety and that there are no security issues in the location where the Australian immigration visa applicant resides.
Held: Decision under review set aside.
The Tribunal accepted both the review applicant and Australian immigration visa applicant’s evidence that the Australian immigration visa applicant has work and sufficient financial resources in Sri Lanka to ensure the Australian immigration visa applicant will comply with the visa conditions and return to Sri Lanka at the expiration of her visa. It further accepted the evidence that the Australian immigration visa applicant’s family responsibilities in Sri Lanka will ensure she returns, and found that the Australian immigration visa applicant has no intention of taking up permanent residence in Australia whilst her elder sister remains alive. The Tribunal agreed with the submission that non-compliance with the terms of the visa may have the potential to negatively affect the Australian immigration Australian immigration visa applicant’s application for permanent residency. It accepted that the applicants do not expect a decision to be made on the application for two years and that, if approved; the Australian immigration visa applicant then has five years in which to take up her residency. The Tribunal accepted that the Australian immigration visa applicantwould be traveling to Australia to assist her daughter with the care of her new born baby for a few months. It was also satisfied that her intended visit is genuine and that there is very little likelihood that the Australian immigration visa applicant will remain in Australia after the expiration of her visa. Accordingly, the Tribunal set aside the original decision and found that the Australian immigration visa applicant met cl.679.224 of the Regulations.
0907291
8 October 2009, Melbourne
P Murphy, Senior Member
CONFIRMATORY (RESIDENCE) (CLASS AK) SUBCLASS 808 – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 808 visa as he was not the holder of any of the specified visa classes required by cl.808.211 of the Regulations at the time of application. The Australian immigration visa applicant is 24 year old Indian national who arrived in Australia in October 2007 on a student visa which was valid until March 2011. Supporting material indicated that on or about 24 May 2009, the Australian immigration visa applicant was the victim of a serious criminal assault, during which he was stabbed in the head with a screwdriver. Medical evidence indicated that the assault resulted in him sustaining significant injuries, including traumatic brain injury, requiring hospitalisation and post hospitalisation rehabilitation. In August 2009 the Australian immigration visa applicant applied for a Confirmatory (Residence) (Class AK) visa stating that he wished “to apply to the Minister of Immigration under section 351 of the Migration Act”. It also noted that he had “life threatening and permanent disability as a result of a violent crime committed (sic) against me.”
Held: Decision under review affirmed.
The Tribunal received the response to hearing invitation which indicated that neither the Australian immigration visa applicant nor his authorised recipient wished to take part in the hearing. The Tribunal found that this response was consistent with previous information which indicated that the primary intention was to activate the ability of the Australian immigration visa applicant to seek Ministerial Intervention under section 351 of the Act. In light of this, the scheduled hearing was cancelled and the Tribunal proceeded to determine the Australian immigration visa application without a hearing on the basis of the material before it. Clause 808.211 provides that, at the time of application, an applicant must be the holder of one of the specified visa types stated therein. The Tribunal found that the Australian immigration visa applicant held a Student (Temporary) (Class TU) Subclass 573 visa at the time of application, which is not one of the visas specified in cl.808.211. This finding was reinforced by departmental records. The Tribunal therefore was not satisfied that the Australian immigration visa applicant was the holder of one or other of the visas specified in cl.808.211 at the time of his visa application. Accordingly, the Tribunal found that the Australian immigration visa applicant did not satisfy the requirements of cl.808.211 for a Subclass 808 visa and there was no basis or discretion for the Tribunal to avoid that requirement. The Tribunal found that the Australian immigration visa applicant was therefore not entitled to the grant of a Confirmatory (Residence) (Class AK) visa.
0901144
12 October 2009, Sydney
Mr J Cipolla, Member
TOURIST (CLASS TR) – SUBCLASS 676 – CL.676.221 – INTENTION TO ONLY VISIT – A delegate of the Minister refused to grant the Australian immigration visa applicants Subclass 676 visas because he was not satisfied that their intention to only visit Australia was genuine. The delegate found that the primary Australian immigration visa applicant and his wife and daughter (the secondary applicants) did not have sufficient financial or personal ties in the Philippines that would act as strong enough incentive to ensure their return at the end of their proposed stay. The Tribunal determined that it had jurisdiction only to review the primary Australian immigration visa applicant’s visa application. The Australian immigration visa applicant and his sister (the review applicant) presented evidence that the Australian immigration visa applicant owns a piggery and a rice mill. They claimed that these businesses represented significant investments by the Australian immigration visa applicant that require attention and regular managing and that for this reason, the Australian immigration visa applicant could only holiday in Australia for the month requested. The review applicant also stated that the Australian immigration visa applicant’s second daughter, who was one year old at the time of application, was not included in the application. The review applicant claimed that the Australian immigration visa applicant would want to return to his daughter at the end of his stay. She further claimed that the Australian immigration visa applicant had commitments for the care of his elderly, hearing-impaired mother and to the local civil service to which he provides assistance during emergency relief operations. The review applicant submitted details of several family members and friends, all of whom had traveled to Australia previously and had abided by their visa conditions. Both the review and Australian immigration visa applicant claimed that there was no basis on which the Australian immigration visa applicant could lodge a protection visa application. The review applicant claimed that the Australian immigration visa applicant had a peaceful and successful life in the Philippines. The Australian immigration visa applicant stated at hearing that he understood the jurisdictional issues regarding his wife and daughter’s visa applications, and confirmed that they would remain in the Philippines during his proposed visit. He claimed that this constituted a substantial incentive for him to return home at the conclusion of his proposed visit.
Held: Decision under review set aside.
The Tribunal found that the Australian immigration visa applicant’s expressed intention only to visit Australia was genuine. It found that the evidence submitted regarding the applicant’s businesses in the Philippines indicated that his wife, daughters and mother are all dependent on the running of the businesses. The Tribunal further found that the Australian immigration visa applicant’s mother and other relatives had traveled to Australia previously and had always complied with the conditions of their visitor visas. It found that the Australian immigration visa applicant derived a great deal of pride from the volunteer work he had been involved in over the preceding 12 months. The Tribunal found that the Australian immigration visa applicant sought to visit Australia for the purpose of visiting his sister and that he would have access to adequate funds for his personal support during his proposed visit. It also found that the decision to refuse visas to the applicant’s wife and daughter were not decisions the Tribunal could review, and that they would remain in the Philippines during the applicant’s visit. On this basis, the Tribunal found that the applicant met the requirements of cl.676.221 of the Regulations.
Other Related Australian Imnmigration Articles:
Australian Immigration: Appeal Decisions 2010
Australian Immigration: Appeal Decisions 2009
Australian Immigration: Appeal Decisions 2008 - coming soon
- Business & Skills Visas
- Family Visas
- Partner Visas
- Student Visas
- Other Visas
