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