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
This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers,
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