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Posted by on in Visiting Australia
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Visitor Visas – Satisfying the “Genuine Temporary Entrant” Criterion

At least in theory, applications for “visitor visas” to Australia (subclass 600) should be relatively simple, straightforward and uncomplicated.  After all, it is well known that tourism is part of the “lifeblood” of the Australian economy.  However, it is far from the case that visitor visa applications are “routine”.

All too often, these applications are refused because the Department is not satisfied that the visa applicant meets the requirement, specified in clause 600.211 or Schedule 2 of the Migration Regulations, of demonstrating that she or he “genuinely intends to stay in Australia (only) temporarily”. 

One of the difficulties with visitor visas is that, in most circumstances, the Department’s decisions to refuse an application cannot be challenged.  The right to seek review of the refusal of a visitor visa application is limited to a few narrow circumstances – primarily cases where the applicant is seeking a visa under the Sponsored Family Stream.  Thus, in circumstances where no review rights are available, the Department can, and does, seemingly arbitrarily, ignore evidence that would establish that the visa applicant is indeed a “genuine temporary entrant” (for example, evidence that the applicant has strong family, economic and social ties to their home country which would provide strong incentive for them to return at the conclusion of their planned visit). 

A recent decision of the Migration Review Tribunal does provide some guidance concerning the kinds of evidence that can be relied upon to satisfy the “genuine temporary” entrant criterion for visitor visas.

The case, 1416815 (2015) MRTA 200 (decided on 3 February 2015) involved an application under the Sponsored Family Stream.  Consequently, the Department’s initial refusal of the visa application was “MRT-reviewable” (under section 338(5) of the Migration Act).  The outcome in the case was that the MRT remitted the application back to the Department with a direction that the applicant had met the relevant criteria for the grant of a Visitors Visa. 

The application that was at issue in the case involved a proposal by a young woman who is a citizen of Lebanon to come to Australia for a period of 6 weeks to visit her uncle, who had been a permanent resident of Australia for 20 years, since 1994. The visa applicant was 21 years old at the time of the application.  She was unmarried and lived with her parents two sisters in Tripoli, in the north of Lebanon.  She had just finished an accounting internship and provided a letter from her employer to the Department in support of her application which stated that she would resume working with the employer after the conclusion of her visit to Australia. 

The Department’s delegate who refused the application premised his decision on the following matters: adverse country information that northern Lebanon was affected by the ongoing civil war in Syria; the applicant’s lack of a prior international travel history; the fact that her relatives in Lebanon were not “dependents”; and her short employment history.  The delegate also stated concerns to the effect that he was not satisfied that the applicant’s family ties and employment in Lebanon would provide sufficient incentive for her to return following her trip to Australia (it is our observation that this last concern, that a young woman living with her parents and sisters would not have incentive to rejoin them, can fairly be characterized as “ridiculous”).

In the event, the member of the MRT who presided over the appeal against the visa refusal, concluded that the evidence was in fact sufficient to establish that the applicant that she met the “genuine temporary visitor” criterion and was thus eligible for a visa.

In reaching this determination, the Tribunal member relied on the evidence that the applicant had significant family ties to Lebanon (even though these family members were not “dependents” such as children or a spouse/partner); that the applicant had employment in Lebanon to which she would return; that the applicant’s sponsor, her uncle, had a business in Australia which had earned a profit of over $400,000 during the previous year (and there was therefore no concern that the applicant would need to work while in Australia or that she would not be provided with adequate financial support during her visit);  that the sponsor’s family had a good migration history, with a record of compliance with visa conditions (based on the fact that the sponsor’s sister and mother had both come to Australia on visitors visa and had returned to Lebanon before those visas had expired); and lastly, that the sponsor was prepared to provide substantial financial security, in the form of a bond in the amount of $30,000, to ensure the applicant’s compliance with the conditions of her visa. In the end, this evidence was sufficient to outweigh the Tribunal member’s concerns that the applicant was coming from a troubled part of the world.

The history of this case illustrates that there are occasions when the Department’s review of visitors visas may “defy common sense”.  In particular, the concerns of the Department’s delegate that the applicant would essentially abandon her family and her job and would instead elect to overstay her visa and remain permanently in Australia appears to be misplaced.  

In this particular case, the visa applicant was fortunate to have an opportunity to present the merits of the application, and the evidence of her strong family and work ties to her home country, to the MRT, and to have the refusal of her visa reversed so that she will be able to come to Australia and visit her family here.  Unfortunately, applicants for visitors visas that are outside the Family Sponsored Stream may not have review rights, and their applications may thus fall victim to the unfettered discretion of the Department’s reviewing officers.

A link to the MRT decision that is reviewed in this article is provided below:

http://www.austlii.edu.au/au/cases/cth/MRTA/2015/200.html

b2ap3_thumbnail_Concordia_20150313-000525_1.jpg This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers,

Web:: concordialaw.com.au Tel: (02) 8068 8837 Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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  • Guest
    Wayne Harrison MARN 0901108 - http://www.linkedin.com/in/StaffingSolutionsAustralia Friday, 13 March 2015

    The history of this case illustrates that there are occasions when the Department’s review of visitors visas may “defy common sense”.

    "Common sense is not so common."
    * Voltaire, Dictionnaire Philosophique (1764)

    Try explaining to Australian Permanent Residents and Citizens when they can't believe that their Visitor Visa Applications have been refused by the Australian Embassy in the Country of their Partners, Family or Friends.

    It may be of use for future applicants to study some of the latest DIBP Visitor Programme Statistics:-

    http://www.immi.gov.au/pub-res/pages/statistics/visitor-programme-statistics.aspx

    In particular the Modified Non-Return Rate (MNRR) Report which is a "is a quarterly publication which is used as an indicator of Visitor visa compliance, and may be considered by decision-makers when assessing visa applications."

    A Sydney Morning Herald Report:-

    http://www.smh.com.au/federal-politics/political-news/more-than-62000-people-living-illegally-in-australia-20141226-12dxod.html

    People from China, Malaysia and the United States were the highest number of visa overstayers in Australia in 2013, with the Chinese topping the list at 7690.

    According to an Immigration Department report, Migration Trends 2012-2013, visitors (44,800) and students (10,720) were the largest cohort of visa holders to overstay their visit. The highest number of visa overstayers in 2013 by nationality came from China (7690), Malaysia (6420), the US (5220) and the UK (3780).

    The department says an estimated 62,100 people were unaccounted for in Australia during 2014, which is roughly 1.2 per cent of the 5.5 million people who enter the country each year on temporary visas.

  • Guest
    MAgent Friday, 13 March 2015

    I had a client who had previously visited Australia in 29013 on a tourist visa and in doing so fully complied with all provisions and conditions of her visa. She holds a degree in translation and Interpreting (English)

    She recently applied to pay her relative (2nd cousin) a return visit in Australia. All costs associated with the visit to be met and paid for by her relative.

    As the relative is just outside of the definition of close relative she did not fall within the definition required for a Family Stream subclass 600 visa and had to apply under teh tourist stream.

    Even though she had previously de4mionstatrtated full compliance with her previous travel and there was a high degree of compulsion and compliance by her relative sponsor she was refused a second visa application. The case officer claiming that she had demonstrated limited previous travel. At age 22 and a recent graduate from University she had minimal work experience.

    Yet there was nothing in the application that demonstrated or indicated that she would not comply with the conditions of her visa. The standing of her sponsor and the risks om poised on him for non compliance would be considerable. References from senior embers of Parliament who knew both the applicant and the sponsor were ignored.

    Its not a case of three strikes your out but more of a case of flawed profiling on behalf of the delegate. No appeal rights

  • Guest
    MAgent Friday, 13 March 2015

    Another example of flawed thinking by case officers who are rearly held to account for bade assessments.

    I had a client company who wanted to send two member team (The manager and the sales manager) to attend a international industry conference in Sydney last year.

    Both applicants had extensive international travel held multiple-entry visas to Europe and teh United States and had attended the same conference held each year over the last ten years.

    The delegate approved the manager's visa yet refused the Sales manager.

    As much as I tried toi entice them to take some time out and see a bit of Australia whilst visiting they could only spend less than 7 days.

    The decision of the delegate was not supported by the evidence and brought Australia's standing under the WTO agreement in disrepute and underminded Australia as a location for holding international trade shows.
    .
    We wrote a letter of complaint to the Minister of Immigration and the Minister for Trade and contacted the host organization and organizers of the conference which was based in France who again provided a further letter expressing concern that both the Manager and Sales manager had previously attended the same conference in other states .

    With less than two weeks before the event we submitted a second application urging immediate assessment and review.

    The second application was successful the applicant attended the conference and left Australia 5 days later. I felt embarrassed for my country as there was no justification or merit behind the original refusal.

    Some form of internal review or oversight is required.

  • Guest
    Daniel Minchew Saturday, 04 July 2015

    Yes i also have been denied twice for a short stay visa with rule 66.211 enforced...don't really know why or how they come up with this but i really believe it is unjust and unfair...

  • Guest
    Joseph Friday, 13 November 2015

    don't you wonder when someone who is offered a doctoral scholarship from one of Australian Universities is denied a VISA?. That happened to me.

  • Guest
    Jasjeet Singh Sunday, 10 July 2016

    hi dear
    this is Jasjeet Singh. i want to apply for vistor visa. i am from India.
    how much incentives they want for genuine temporary stay in Australia.

    Thanks

  • Guest
    akin Friday, 15 July 2016

    can someone please help me. I am lecturer from Nigeria attending a conference in Australia. I applied with all my documents valid intact and legal. but the embassy just kept mute abt the application even after series of mails and only a single response stating that application seen and assessed but awaiting decision. it also out of service standard. it's late already but am pained hurt and frustrated. Wat can I do

  • Guest
    sameer ch Thursday, 20 October 2016

    can any one provide me an email of expert so i can discuss with him my recent refusal matter?

  • Guest
    LEO VERMA Friday, 06 January 2017

    Hello Experts,
    I would like to apply Tourist visa 600-Family Sponsored Stream for me and daughter, I have question as follow;
    1. I had multiple visa refusal from 2004-2008 (457 Employer Sponsored-Dependent, 676-Tourist Visa 5 times, 116 carer visa, 101 child dependent). I was unmarried.
    2. Whole family settled in australia since 2009
    3. Now married with 1 daughter.
    4. Husband got 457 visa refusal Nov 2016.
    ANY SUGGESTION WOULD BE GREAT.

    THANKS

  • Guest
    Thitinut Thursday, 16 March 2017

    The reasons to refused because I worked with my family company. It said not stronge employment. I have just bought a new car. Yes, I have 2 houses and some saving that lots for traveling for 1 years, but I asked for 2 weeks. It is not sacrifice for my financial. And worried if I want intent stay, doesn't matter with my last international holiday... in Europe!
    No more asked for documents or information ....but if you still want to visit Australia , apply again !
    Next time if I want to apply for tourist I have to provide tons of document!

  • Guest
    Sue Nemer Thursday, 14 September 2017

    Hi, I'm so concerned from reading all the comments as I have promised my cousin who will be 18 when applying for a visitor's visa to Australia that if he passed his HSC and gets in to university in Lebanon that I will pay for his return ticket and all expenses paid. This was a big motivational strategy that now concerns me with all the criteria that apply to the Australian immigration. His family has a comfortable financial bank balance and are living very comfortably with a strong family tie that if he didn't return his mother would literally have a heart attack. His young and ambitious and would love to visit Australia before he commences his university studies in Lebanon. I know it's a third word country with political problems but it dosn't mean that they will abandon their home. No matter how good Australia is. What are his chances I don't won't to let him down so it's better I know now then to lead him on thinking it so simple where it's actually quite ridiculously difficult to visit Australia.
    Can someone with similar concerns or knowledge of the system give some input in this matter.
    Thanking you before hand.

  • Guest
    pari Saturday, 16 September 2017

    Hi,
    In 2016 march I applied Australian Visitor Visa and also I got visit visa for 3 month, but due to our company Financial Auditing, I could not use that visit visa, and also my Company Managing Director told me just hold it and you can go next time. Then in 2017 April again I applied, but they rejected it, then again i applied in May same again they rejected, I don't know why the rejected, I have enough money in my Bank Account almost 15000 USD and travel Insurance with return Air ticket and hotel booking. Then I went Georgia and Armenia. Every year I have a program, This December I have plan to visit Newzleand.

    This year I need to apply, I dont know whether I will get or not.

    Faisal Pari

  • Guest
    Michael Arch Monday, 18 September 2017

    Responding to the comment above from Sue Nemer:

    No responsible migration agent or lawyer would give migration advice through an on line forum, each case needs to be dealt with on its specific facts. The genuine temporary entrant requirement is a criterion for the grant of a Visitor Visa and evidence needs to be submitted to the Department to demonstrate that this requirement is met.

    If you require a referral to a migration agent or lawyer, you can contact help@migrationalliance.com.au or find a registered migration agent through the Website of the Office of the Migration Agents Registration Authority.

  • Guest
    nazeer nawas Wednesday, 08 November 2017

    Australian visa officer very rasised Australia only can live gangaroo and animal's humans can't going australia becouse visa officer not allowed humen

  • Guest
    FAISAL PARI Wednesday, 08 November 2017

    Dear All,

    I applied 3 time for Australian visitor visa, 1st time in 2016 March , I got 3 month visit visa, but due to my company financial audit, my CFO requested me to go on next vacation, so I couldn't use it for Australia as a visitor. 2nd time I applied on my another vacation in March-2017 ,but they refused it, and again I Applied on April-2017 First week, 3rd time also they rejected. I have a dream, i want to visit Australia ,Canada, USA and Switzerland, Georgia and Armenia, Srilanka, Thailand, but I already visited Georgia, Armenia and Thailand, Srilanks.

    Now I already married, so me and my wife have a plan to visit Australia and Singapore on My next Vacation it means on MARCH-2018, I don't know Australian Boarder Security will provide us visitor visa or not, we need only just 10 or 15 days enough, bcz I have only 30 days vacation.

    Thanks
    FAISAL PARI

  • Guest
    Hadassh Bingham-Smith Thursday, 18 January 2018

    In 2016 my son found out that he had a daughter in South Africa. In late 2016 we invited her to Australia to met all of us and see if she would like us and our Country (Australia). My son and his daughter and the entire Australian Family fell in love with her and she with us. His daughter wanted to come and live in Australia and make this country her country. Our family are more than forty born Australians and her great grandfather fought for this country in the Royal Australian Navy. None of this matters to the immigration authorities. It has now been a year and we are still fighting to get either a visitors visa or child visa. Each time a visa is denied it has to go to the Australian Appeals Tribunal and there it can sit for months or even years. No refund is ever offered. My son owns three homes in Australia and is full time employed earning a very high salary so financially he is more than equipped to support his daughter. One of the refusals claimed that she was not his daughter so we had to pay a large sum of money to have a DNA done. My sons DNA kit was sent to him in Sydney and his daughter's kit was sent via courier to the Australian Embassy in South Africa, where it sat and sat for several weeks, until finally we contacted a case worker at the embassy who went looking for the kit and found it hidden behind a filing cabinet in one of the offices. Never have I seen so much corruption and stupid reasons for declining a visa. The DNA confirmed conclusively that she is my sons daughter. AT the moment we have had to hire an immigration lawyer at a very high cost as dealing with the AAT is a nightmare of non committal conversations and you just get nowhere. What I don't understand is why a visitors visa cannot be granted whilst we are waiting for the outcome of the child visa at the AAT. The reasons they give like so many I have read above are sublime to the ridiculous. They say that the applicant will not return to their own country once the visitors visa expires. what stupidity IT IS THE LAW, you have to return. My son's daughter returned after the first visa expired why would she not again, at least we would have had some time to see her to hold her to love her. Ourr hearts a broken and they do not care. My son and all of us miss her terribly and she is suffering as her mother has remarried and has other children and a family and therefore she feels very alone, whereas here in Australia she has a very large family. My son's daughter is miserable and emotionally stressed. She has already missed an entire year of her education. Yes I know that there are thousands of people who have violated their visitors visas. We have spent hard earned Australian Dollars up to $13,000 trying to get her here to Australia. What has happened to our beautiful Australia. I have even written to the Immigration Minister Peter Dutton and was told that I would get a response after 21 days, well it is nearly three months and no response, although I am continuing to contact them , all you get are pathetic answers. Yes I appreciate the strictness of our Immigration and Border authorities to keep us safe and therefore deny entry to suspicious people. Don't these Immigration Processing Officers have any ideas how to make a decision based on the information or do they just look at the dots and cross the I's and if you don't match 100% it is bye bye. The worst is that you cannot talk to any of the Immigration Processing Officers to explain as you are told they are busy, "GO ON THE INTERNET". When I tell other Australians our story they are shocked, most Australians do not know what is going on in our Government. I always illustrate a story whereby , if I was stuck in a foreign country and was being chased and threatened and ran to the local Australian Embassy and shouted at the gates to let me in I am Australian. The reply would be 'GO ON THE INTERNET" GO ON THE INTERNET. BUT I AM BEING SHOT AT PLEASE HELP. "GO ON THE INTERNET". HECK I WOULD MUCH RATHER RUN TO ANOTHER EMBASSY LIKE ISRALI EMBASSY BECAUSE I KNOW THAT THEY WOULD LET ME IN AND THEN SORT THE PROBLEM OUT LATER, BECAUSE THEY VALUE LIFE AND FAMILY. Not so with Australia we have lost the respect for a family. Try phoning the Immigration and Border Control in Australia and you have to hold on for hours whilst you are told that you are NUMBER 61 in the cue. It is time our Immigration Minister Peter Dutton was replaced as he is not doing his job and he surely knows about the problems, but could not care. Enjoying his big fat salary paid by my hard working family taxes. I have changed my opinion about which political party I will next vote for. Peter Dutton must remember what goes around comes around.
    written by a HEARTBROKEN GRANDMOTHER

  • Guest
    Colin Thursday, 18 January 2018

    I am an Australian retired living with my Burmese partner in Thailand, we applied for a tourist visa to visit Sydney and Melbourne where my family live. Within one day we received a notice of refusal. because the assessor states he does not believe my partner would return to Thailand??? we have a home here, my partner looks after me and i have sufficient funds to pay for holidays. Whats interesting is that you can ask for a review AAT and the cost is $1700. Now you will understand why the department rejects visitor visa-- to make more money. Shameful, hopeless service for Australians.

  • Guest
    oswald bruggemans Wednesday, 24 January 2018

    Like so many, Australia public office are froughtuland in their application fees. their acting in self-interests, at great expense and losses of the applicant, even I 50 years in Australia my permanent residency was compromised by Australian public office hearsay, after two years in limbo, even I encouraged immigration to cancel my Visa. even when I eventually wanted to leave on my own account, they did not want me to leave Australia because they wanted to know who I was going to talk to oversees, now such control orders have expired, six weeks before it did I was adviced my disputed party Centrelink would not let me leave Australia alive, So guys welcome to Australia . now I sell my experience, to protect their Visa applications. its simple, it's Australia immigration who are not genuine, who want to rip you off, ask any agency they will tell you, they must pay their annual fees to be able to assist visa applicants, such conflict of interests is called double dipping by our Australia government, I had direct assistant immigration ministers under Philip Ruddock actually tell me on the phone, that even if I was right, that the department of imigration did not have a reason to deny my friend to come visit me in Austraia did I realise how many aplication they where getting for a visitors visa to Australia, So I ask him my money back , he refuced ! he said its for aplication only, no garentee of sucses. I reminded him what he said, about i I realized how many applications they receive, and hinted we cannot accommodate every request, this now becomes fraught, theft, excepting application fees without there genuine intend.yes, my friend is now my wife for 12years in Australia. but what did it cost me . ? our government is good in making assumptions and even when they recognize they made a mistake they fail to account for damages caused. for years they try to intimidate me, even when my wife arrives on the Adelaide airport by herself, they ask her to tell them what I am selling, well guys I am selling protection, this is incentives for immigration to comply with a legal visa request based on my personal experience, as the control orders and gag orders are now expired .
    An applicant must always think in the interests of the Australian government, not only what they want, but also what they do not want, I can assist you, by this factor, it will be in the interests to comply with your legal visa grant requests, there are many incentives an applicant can use, not only creative products but also information . simple awareness for example how the IRFA could be used as an incentive to come to Australia, by placing a bounty on the pests, we have 7 GPS positions for sale to trade off in western Australia outside the Biosecurity zones . it has cost Australia 800 million dollars so far trying to control this pest if every visa applicant pays a small donation, for our finders they may destroy this pest upon there arrival, if they do not get a visa, they will not be here to destroy this pest. this might cost our economy billions as this self-propagates. all they have to do is distribute this information, it will soon be realized its in Australian interests, it's not only our government authorities who can dish out ultimatums. Australia is good at this, I learned from this.

  • Guest
    oswald brugggemans Thursday, 25 January 2018

    Our Australian government does not give a stuff about your economic standing in society, they promote student visas overseas, knowing 80% will not qualify anyway but will charge you exponential application fees. Australia is selling education and technology froudgendly , it is a creative industry. media, lawyers, and judges have no say, police and immigration have the power of decision making, the well-being of your life, people overstay for this reason it's too costly not to. our western culture bribes your government, for this reason, they want to keep you there in your own country. I came to Australia for $50. dollars 50 years ago, today my reentry visa cost me $400 dollars for every five years. because they can, yes Australia is a good country still but at what price, today its a police state. defamatory laws are misused. by the public office, please be aware of this upon your arrival. you are controlled and judged by persons given authority to do so, not by lawful process.

  • Guest
    Colin Thursday, 25 January 2018

    totally agree "proud to be Australian" is a joke, every visa application is about making money. deceitful process.

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