CATCHWORDS: Review of visa refusal - Subclass 686 - genuine visit - custody

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Long Stay (Visitor) (Class TN) visa.

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate). Georgia Michalakou (the visa applicant), a national of Greece, born on 20 November 1994, applied for a Long Stay (Visitor) (Class TN) visa on 8 July 2003 (D1, f.18). The delegate's decision to refuse to grant the visa was made on 27 August 2003 (D1, f.21).

2. The visa applicant lodged an application for review with the Tribunal on 15 September 2003 (T1, f.7). The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The criteria and policy immediately relevant to this review are:

Part 686 of Schedule 2 to the Regulations

Policy Directions No 1 and 2 of 1996, issued by the Minister under section 499 of the Act

Procedures Advice Manual 3: Generic Guidelines H - Visitor visas

Procedures Advice Manual 3: Schedule 4 - Public interest criteria - criterion 4011

6. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

D1 - Departmental case file CLF2003/50451, folio numbered 1-24.

8. The visa applicant entered Australia on an Electronic Travel Authority (Visitor) subclass 976 visa on 2 May 2001. On 2 August 2001 she was granted a subclass 425 (Family Relationship) visa valid for two years. On 8 July 2003, she applied for a Visitor (Long Stay) subclass 686 visa, and since then she has held a bridging visa granted on the basis of the application for a visa the subject of this review.

9. The delegate stated that the visa was not granted on the basis that:

...the applicant intends to stay permanently in Australia, therefore does not meet 686.211 (D1, f.19).

10. The review applicant stated when lodging the application for review that:

Decision incorrect - would like a review (T1, f.10).

11. The visa applicant arrived in Australia in the company of her paternal aunt, Mrs Sofia Sarris following a transfer of guardianship by her father to his sister, Mrs Sarris, following the death of his wife and the applicant's mother because he was unable to care for the child. A certificate of guardianship, issued by a Notary in Laconia, Greece, on 21 March 2001, is on the departmental file (D1, f.7).

12. On 16 June 2003 the Family Court of Australia ordered that the applicant live with Mr Michael and Mrs Sofia Sarris (her aunt and uncle), who have joint responsibility for her day to day and long term care, welfare and development (T1, f.19).

13. On 29 September 2003 the Tribunal was informed by Mrs Sarris that she had nominated the reverend Konstantinos Kostakos to represent her before the Tribunal. On the same day the reverend Kostakos advised the Tribunal that Mrs Sarris wished to forego the opportunity to provide comment and attend a hearing with the Tribunal in order to achieve a quick decision in her case. In the light of this advice the Tribunal decided it should make a decision on the basis of the material before it without conducting a hearing, in accordance with section 360(2)(b) of the Act.

14. Class TN contains one visa: the subclass 686 (Tourist (Long Stay)) visa. The criteria for a subclass 686 visa relevant to the Tribunal's consideration are:

* the visa applicant held a substantive visa, other than a subclass 426 visa (subclause 686.213(a))

* the visa applicant `seeks to ... remain in Australia, as a visitor ... for the purpose of visiting an Australian citizen or Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant; or for another purpose other than a purpose related to business or medical treatment' and 'has adequate funds, or access to adequate funds, for personal support during the visit' (clause 686.211 and paragraph 686.221(2)(a))

* the visa applicant satisfies the decision-maker that `the expressed intention of the [visa applicant] only to visit Australia is genuine' (paragraph 686.221(2)(c))

* the visa applicant `has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject' (clauses 686.213(b) and subparagraph 686.221(2)(g)(i))

* `the further period of stay in Australia is not sought for the purpose of commencing, continuing or completing any studies or training' (subparagraph 686.221(2)(g)(ii))

* `the applicant intends to comply with any conditions to which the visa is granted' (subparagraph 686.221(2)(g)(iii))

* `if the grant of the visa would result in the applicant being authorised to stay in Australia for more than 12 consecutive months as the holder of 1 or more visitor visas or a Subclass 417 (Working Holiday) visa ... the applicant must satisfy the [Tribunal] that exceptional circumstances exist for the grant of the visa' (subparagraph 686.221(2)(g)(v))

15. The Minister has issued directions under section 499 that are relevant to these criteria - Policy Direction No. 1 of 1996 in relation to `genuine visit', and Policy Direction No. 2 of 1996 in relation to `adequate funds'.

16. There is no statement in the application made on 8 July 2003 indicating any intention on the part of the applicant to remain in Australia longer than the normal period of the Long Stay Visitor. It can be inferred, however, from the custody application and subsequent orders from the Family Court, that the intention is that the applicant remain in Australia permanently. The delegate's decision mentions that the applicant's guardians have expressed this wish. It is, further, mentioned that the guardians wish the case to be dealt with quickly in order to enliven the Minister's intervention powers under section 351 of the Act (D1, f.19).

17. As it is clear that the applicant's intention, as expressed by her guardians, is to remain permanently in Australia, the Tribunal finds that she cannot meet the criteria contained in clauses 686.211 or 686.221, which require the applicant to intend only a visit to Australia.

18. Given these findings, the Tribunal has no alternative but to affirm the decision under review.

19. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Long Stay (Visitor) (Class TN) visa.