Australian Immigration Daily News

Do you find that the Department’s approach to visitor visas (Subclass 600) – especially those sought under the Sponsored Family Stream – can be frustrating, incomprehensible, bureaucratic, maddening?

Is a refusal of this type of application enough to send you screaming down the hallway of your office, as if your hair was on fire?  Unleash the following stream of invectives/expletives :!@#$%^&*()_+?  Cause you to bay at the moon?  All of the above?

Well, it seems anecdotally that visitor visas are often (too often!) refused on the basis that the Department is not satisfied that the applicant meets clause 600.211 – that “the applicant intends to stay temporarily in Australia for the purpose for which the visa is granted”.

Well, at least merits review of the refusal of applications made under the Sponsored Family stream is available before the AAT.

And a recent decision, Ballard (Migration) (2017) AATA 1336 (2 August 2017) shows that these cases can be won in the Tribunal.

A look at the case illustrates the kind of evidence that may be needed in order for a merits review application to be successful.

Here was the story in this case:

The visa applicant is a citizen of Thailand.  She is married to her sponsor, the named “review applicant”, who is an Australian citizen.  The visa applicant had previously been married to another Australian citizen, and had applied for a Partner visa in respect of that relationship.  However, that Partner visa was never granted because the marriage had run into difficulty. 

Significantly, however, the applicant had travelled to Australia 5 times during this earlier marriage.  The Department’s “movement records”  (infelicitous terminology, right?!!!!) which were available to the Tribunal recorded that the applicant had departed Australia and returned to Thailand in compliance with her previous visas, so she had no adverse immigration history.

There was evidence before the Tribunal that the sponsoring Australian citizen husband was employed in Australia as a carpenter, and that he had a pattern of working for a couple of months, and then travelling  to Thailand , presumably to spend time with the applicant.  The sponsor “took time off” from his work in order to make these trips, and wanted his wife to be able to visit Australia so that he would  be able to continue working in Australia for longer uninterrupted periods of time.

There was also the following evidence concerning the applicant’s connections to Thailand, and her incentive to return at the conclusion of her proposed visit to Australia:

• Her sponsoring husband had regularly been sending her money, established through bank statements that were produced to the Tribunal
• The applicant was in the process of opening a business in Thailand that she planned to establish jointly with her husband and that was being established with the financial assistance provided by the husband;
• The applicant shared a residence in Thailand with a mother that she cared for;
• The applicant also had 2 children living in Thailand who were in their late teens/early twenties and who stayed with her and her mother in a spare room in their house when their studies allowed;
• The applicant was proposing to stay for only 1 – 2 months as she need to return to Thailand to look after her business, her mother and her pets;
• The applicant informed the Tribunal that she had no intention of applying for a Partner visa while in Australia as it was her stated intention to continue living in Thailand.
• The applicant was prepared to provide the Department with financial security to ensure her compliance with visa conditions and her return to Thailand upon expiration of her visa.

On this evidence, this case seems to be a bit of a “no-brainer”, doesn’t it?

An applicant with family and business ties to her home country, a stated intention to return at the end of her visa so that she could develop a business that was being funded in part by her Australian husband, a proposed visit of limited duration, and a willingness to provide financial security to assure her compliance with the visitor visa and her return to Thailand.

And yet, and yet, a refusal by the Department!!!!  The perpetual brick wall of the all-too subjective temporary entrant requirement!

Well, at least this review application was successful.

So, at least in this particular case, no further baying at the moon required!

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