Recent win at the Administrative Appeals Tribunal

Immigration context

I was recently approached by an individual from Papua New Guinea (‘the Applicant’) who had lodged his own application for a Class FA, Subclass 600, (Visitor (Tourist)) visa (‘FA 600’) in May 2017.

The Applicant showed a long history of holding temporary visas in Australia, dating back to around 1990. Among the various visas granted to him was a student visa in relation to studies for a Bachelor of Engineering degree. His total time in Australia as a temporary resident added up to over 10 years.

In his application for the FA 600, which the Applicant lodged onshore, he entered ‘up to 3 months’ for the proposed period of stay. As reason for the further stay request, he stated that he required an extension while in the process of applying for a skilled migration visa and permanent residence.

The application was refused on the basis that the Applicant did not meet the genuine temporary entrant requirement under Clause 600.211 of the Migration Regulations 1994.

Details of the appeal

However, I successfully argued, notwithstanding the Applicant’s statement that he was essentially in the process of applying for permanent residence, seeking a skilled migration visa, he was nevertheless a genuine temporary entrant for the purposes of the Migration Regulations.

In doing so, I noted that the Applicant had not stated he intended to apply for permanent residence onshore (as opposed to offshore which might have similarly been inferred). We submitted it would hardly be possible to undertake and complete the process of a skilled migration visa application during the Applicant’s sought stay of 3 months as a visitor.

Moreover, the Applicant had an unblemished record of compliance with the prior visas he held and there was nothing to suggest he breached any visa condition. In addition, he provided evidence of some property interests as well as possible work to return to in his home country.

We also addressed a contention raised by the Department of Home Affairs to the effect that the Applicant’s purpose and intention was to establish de facto permanent residence in Australia.

Outcome

In this respect, it was observed by the Administrative Appeals Tribunal in 1507445 (Migration) [2015] AATA 3383 (9 September 2015) that “[n]o definite line can be drawn between the idea of a series of compliant, regular, and lengthy visits, and an attempt over time to mimic residence in Australia…There is no rule or regulation which prescribes when the former becomes the latter” (at paragraph 22).

Considering, inter alia, that the Applicant had not breached any statutory provision or regulation in obtaining multiple temporary visas, I could refute the proposition there had been an intention on the part of the Applicant to establish de facto permanent residence in Australia.

The Tribunal remitted the application to the Department for reconsideration, with the direction that the Applicant met relevant criteria for the FA 600 including Clause 600.211 of Schedule 2 to the Migration Regulations.

It is unlikely the Tribunal’s decision will have wider precedence value as the outcome turned on the particular facts and circumstances of the case.

By |2019-12-09T05:18:40+00:00January 9th, 2019|Uncategorized|Comments Off on Recent win at the Administrative Appeals Tribunal