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Immigration Daily News Getting An Application For A Visitor’s Visa Across The LineAustralian Immigration Daily News
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Getting An Application For A Visitor’s Visa Across The Line
One might think that because of the importance of the tourism industry to the Australian economy, and also because of the obvious social value in allowing Australian citizens and permanent residents to maintain their relationships with members of their immediate families, that getting a Visitor Visa would, in the ordinary course of things, be relatively simple and straightforward. Right?
Well, one might not think so if one were working professionally as an RMA! Also right? Yep!!!!!
As many of us know, the exercise of trying to get a Visitor’s Visa approved by the Department can be truly frustrating, and can cause us to pull our hair (or in my case, what’s left of it!!) out in clumps!! Sometimes it seems that no matter how obvious it is that our client holds a genuine intention to stay in Australia only temporarily, and we can provide a mountain of evidence that the applicant has sufficient ties to her or his home country to give them strong incentive to return, the Department will not accept those facts, and will refuse the visa application. All too often it seems, the requirement of demonstrating that an applicant is really a “genuine temporary entrant” will rear its ugly head, and stand in the way of getting a visa for the client.
So how on earth do we go about satisfying the Department, or, if need be, the Administrative Appeals Tribunal, that the genuine temporary entrant requirement is met?
Two recent decisions, both of which were handed down in mid-July of this year, do provide some useful guidance: the cases of 1504464 (Migration) (2015) AATA 3083 (16 July 2015) and 1504622 (Migration) 2015 AATA 3084 (15 July 2015).
The first of these cases, 1504464 involved an application by a Lebanese man from Beirut who wanted to come to Australia to visit his sister, an Australian citizen. The visa applicant was self-employed in his own taxi business, which he operated with his elder brother. He also had an Internet café business in Lebanon. He lived with his parents and supported them financially. He also had a long-term girlfriend who was living in Lebanon whom he planned to marry. The applicant’s sister, who sponsored his application, produced records to the Department which demonstrated that she had significant savings of $30,000 in the bank, and the applicant himself also had significant savings in a bank in Lebanon.
Despite this evidence, the Visitor’s Visa application was refused. In fact, two previous applications by the applicant for Visitor’s Visas had been refused as well.
Why? The Departmental officer who assessed the application was not satisfied that the applicant genuinely intended to stay in Australia only temporarily. The reasons that the officer made this finding included that the applicant’s family ties to Lebanon consisted only of non-dependent relatives, his parents and his brother; that the applicant did not have a history of prior international travel; the applicant’s willingness to be separated from his family in Lebanon for a period of time; and a lack of evidence that the applicant had sufficient personal, business, employment and cultural ties to Lebanon.
Fortunately for the applicant, the Administrative Appeals Tribunal reached an entirely different conclusion and accepted that the applicant would be a “genuine temporary entrant””. It therefore set aside the refusal and remitted the application back to the Department with a direction that the applicant satisfied the criteria for the grant of a Visitor’s Visa.
The considerations that prompted the AAT to arrive at this result were as follows: a) The applicant had family ties (his parents and brother), business interests, and a serious long term relationship with a woman living in Lebanon whom he planned to marry which would all provide strong incentive for him to return home after his visit to Australia; the applicant had sufficient savings to enable him to support himself during his visit to Australia, and, in any event, his financial needs during his visit would be minimal in view of the fact that he would be staying with and supported by his sister and her husband during his planned visit; the applicant’s sister had a positive record of having sponsored both her mother and father on previous visits to Australia, and they had both returned home to Lebanon before their Visitor’s Visas expired; the applicant’s sister would have strong motivation to ensure that he returned to Lebanon in view of her stated interest in sponsoring other family members to visit Australia in the future; and the area of Lebanon in which the applicant lives (noted also to be the neighbourhood of Beirut where the US Embassy is located) was characterized to be one that was affluent, protected, secure and “upmarket”.
The second case, 1504622, seems pretty unbelievable! The applicant was a 16 year old Chinese boy, who wanted to come to Australia to visit his own mother!!
The background was that the mother had apparently divorced and re-married, and had migrated to Australia herself under the auspices of a Prospective Marriage visa. The boy had stayed behind in China, where he was living with his mother’s parents, and also had an uncle, aunt and cousin who were living in the same city in China. The stated purpose of his proposed visit was to familiarize himself with what life is like in Australia so he could determine whether he wished to ultimately migrate to Australia as a dependent family member under his mother’s visa and for him to undertake English language assessments and to look at universities as possible options for his further education.
Sounds entirely reasonable, doesn’t it! Why wouldn’t a teenage boy want to visit his mother, and the mother to see her son? And isn’t it the case that Australia has accepted many thousands of students from China to pursue university educations?
Not good enough for the Department!!
The reviewing officer refused the application on the basis that the boy did not have sufficient family ties in China to act as an incentive for him to return following his visit.
The AAT did not accept the Department’s justification for denying the visa. It found that it was perfectly reasonable for the boy to visit Australia with the purpose of experiencing life in Australia with his mother and step-father so that he could make an informed choice about whether he wanted to migrate here. Likewise the AAT concluded that it was acceptable for the boy to undertake educational tests while he was in Australia. Most importantly, the Tribunal determined, contrary to the Department’s findings, that the boy’s family and school commitments in China would fact give him incentive to return, as would the knowledge that his failure to go back to China at the end of his visa might jeopardise his ability either to make future visits to Australia or to migrate permanently.
So what lessons can we take away from these cases?
For one thing, the Department can be seemingly harsh and oppressive in the way that it processes visitor visa applications. In these two cases we have seen situations where the Department’s decision would, in one case, have prevented a brother from visiting his sister, and in another, a son from visiting his mother. One has to wonder about the basic fairness of this type of decision-making (I would note that these types of decisions aren’t limited to Australia: I have handled a visitor visa application where a dual Australian/Iranian national who wanted to go to the United State to present a paper at a scientific conference was refused on the grounds that he was seen not to have sufficient ties to Australia to provide him incentive to return, even though his wife and infant child were planning to remain in Australia and even though he had a full time faculty position at one of Australia’s leading universities!)
Secondly, where a prospective visitor can apply for a visitor’s visa through the Sponsored Family stream, the prospects might be better than for applications made under the Tourist or Business Streams. It will be helpful if the sponsor can show that they have previously sponsored other family members, and that those other visitors departed from Australia in compliance with the conditions of their visas. An advantage of the Sponsored Family stream is that an adverse decision by the Department can be appealed to the Administrative Appeals Tribunal (although of course this can be an expensive process and may not be seen by the client as being justifiable for a short-term visit to Australia given the filing fees that must be paid to seek review before the AAT).
Third, the stronger the evidence of the applicant’s family, economic, social and community ties to their home country, the better will be their chances of getting a visitor’s visa. It will be especially helpful to present evidence to the Department, if available, that the applicant has dependent family members who will be remaining behind while the applicant visits Australia; to show that the applicant has stable, long term employment to which she/he will return; and that the applicant and/or her his sponsors have significant financial resources on which to rely for support while visiting Australia.
Fourth, the fact that an applicant lives in a country that has been experiencing political instability (for example, Lebanon) will not necessarily prevent the applicant from obtaining a visitor’s visa. It will be helpful in these types of cases if the applicant can show that she/he is living in a part of their country which is not affected by political turmoil or security issues.
Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
, Tel: (02) 8068 8837
Comments
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Monday, 10 August 2015I agree with Don. The system is unfair and case officers are often protected for their decisions even when it is made in error. I was informed by some of my clients that foreign post often have "inside" procedures that you could follow to ensure that your visa is approved. One such incident occurred in a South China post whereby my client was informed that if she wanted more assurance for a visa grant, she should have used a "local agent" that would be accepted by the case officers at the post. Even if the decisions were made in Australia, they are able to influence with great confidence whether a visa is approved (suggestively ensuring that the client would pass the interview, if one was needed).
Another one was informed that there was no administrative error when my client was issued with a 2012 visa expiry date even though my client would be completing her course in 2013. They got the date correct but hit the wrong number when entering the expiry date. When I called them up, they gave me some excuse saying that there were additional circumstances that I was not aware off which resulted in the 2012 error. Any sane human being could see that the number 2 and 3 are next to each other and it would be very easy to grant the wrong date. Was given some excuse that once it is granted, they cannot change it (without fessing up to the error and would have a difficult internal process that could get the officer in trouble).
If the Department really want to be true to their word of bringing integrity to their practice, then make their case officers more accountable. Visa applicants, RMAs and lawyers are made accountable, why not them? -
Tuesday, 11 August 2015
My brother had Sponsored Family Visitor Visa refused 3 times. In all instances it was refused minutes after opening the file. He is 37 yo, has 2 children and wife that were not traveling with him, 17 years work with International recognized organisation and leave letter from HR manager. The only things we did not have from the "Genuine Visitor" list is property on his name and in Macedonia usually the parents own the property and the children inherit it so not many young people have title deeds under their name.
After the third refusal, I had mission to get it approved and I called and emailed the Temporary Visa section people I found on the Top Chart. A colleague gave me a number for David Watt (to bad he left the department recently) and he was the one who reassured me it will be considered seriously. I wrote few flaming emails as well as Australian citizen, not Migration Agent. I had the visa approved, paid $10,000 bond and he came for 2 months.
Apparently males of certain age from Macedonia have been extending their Tourist visas by taking short trips to NZ, so they were deemed to be high risk. This was Family sponsored visa with No further stay condition as mandatory so I do not see the reason for refusal.
Australian citizens have been forced to go to MRT to get Tourist visa approval and it's shame how they treat our relatives. We are working tax payers that contribute to the society and community but when it comes to family from overseas, they treat them like "persona non grata" and the evidence we supply for the support of the visitors is not even considered.
I am glad I had the resources to influence it but it's shame that Australian Citizens are made to feel not eligible to invite their relatives from overseas. -
Monday, 18 January 2016
When you say Top Chart, what do you mean? Org chart? If so, where can I get it.
I'm in similar position, and don't want to waste a lot of money and time, on something that appears subjective on the part of the officer. Better guidelines would be most helpful. -
Tuesday, 01 September 2015
My clients had visitor visa refused twice because DIBP / case officer not satisfied that a genuine visit to Australia is intended. I'd lodge another application for them for the third time and refused again. The only reason is because there was no evidence that they have travelled overseas therefore case officer unable to establish that they have a previous history of genuine.
Have other RMA's experience this and how do you win the case? -
Wednesday, 02 September 2015
Hi Angelia,
Thank you for your comment. I suggest that you may want to have a look at the PAM guidance on assessing the genuine temporary stay criterion, and develop evidence to address those issues. You may also want to consider a Family Sponsored stream application if you haven't tried that before. I would say that it is my own experience that it may be quite difficult to persuade the Department to change its decision if there have been 2/3 previous refusals. I would be pleased to discuss this with you at the number listed at the foot of my article or by email; otherwise if you are not a lawyer I do suggest that you consider seeking some support/assistance from an RMA who holds legal qualifications or contacting Liana Allan at MA. -
Monday, 18 January 2016
Hi Michael,
Where can I find the PAM guidance? -
Wednesday, 23 September 2015
I am shocked to read some of these stories I was looking to find an answer to why my girlfriends mother was refused a tourist visa to Australia from China to attend her graduation for a Masters degree. On the grounds of She was single (a widow) owned just one unit so was a risk! I was shocked
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Tuesday, 19 January 2016
One option 6that can be considered in a second application is to try and secure the support of a Member of Parliament in sponsoring a Tourist Visa, Of course not every one has sufficient contact or associations with their MP. Many decisions have been made in error.
What is of concern is that the Department does not even take into consideration the Australian Sponsor's willingness to pay a compliance bond.
Many delegates have not read or understood PAMS. I have had clients who hold a EU and US m multiple entry visa and still have been refused on first application travel to Australia to attend an International Industry/trade conference. Confewree3nces that they have attended in every other country every year without problem. We had to write to the Trade Minister complaining about the decision and subsequently had to resubmit a new application which thankfully was approved.
Immigration blog
According to the information provided by both cases, they did submit all the relevant information to the Department but my experience is like most RMAs, no matter what supporting documentation we provide to support the application, we still receive adverse results from some posts. The only way things can be better is to make the officer accountable for reaching such stupid decision - but that won't happen.