1314137 (Migration)

[2015] AATA 3434

1314137 (Migration) [2015] AATA 3434 (25 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Prem Narayan

VISA APPLICANT:  Mr Shelly Sanjay Narayan

Shivika Shilva Narayan

Shaynal Narayan

CASE NUMBER:  1314137

DIBP REFERENCE(S):  OSF2013/094674

MEMBER:Kira Raif

DATE:25 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 25 September 2015 at 7:14am

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 September 2013 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The primary visa applicant (‘the visa applicant’) is a national of Fiji born in January 1975. The visa applicant applied for the visa on 28 June 2013. The delegate refused to grant the visa on the basis that cl.115.221 was not met because the delegate was not satisfied the visa applicant was the remaining relative of the Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 17 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages. The review applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative.

6. The visa application was made on the basis that the visa applicant is the remaining relative of his father, who the visa applicant claims is their Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: r.1.03. ‘Relative’ is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

7. To be granted a Subclass 115 visa the visa applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application, and continue to be a ‘remaining relative’ at time of decision: cl.115.211 and cl.115.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the visa applicant and is ‘usually resident in Australia’.

8. Regulation 1.15(1)(c) requires that the visa applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens. ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations.

   Is the visa applicant a remaining relative of an Australian relative?

9. The visa applicant was sponsored in the application by his father. The Tribunal is satisfied that the sponsor is the father of the visa applicant and that he is an Australian citizen.

10. The visa applicant claims that his parents and a brother reside in Australia. He claims that he had divorced his wife and his two minor children were included in the visa application. The visa applicant enclosed with his application the divorce certificate showing that the divorce took place in October 2005 and a Court Order showing that he had been given custody of the children. The papers submitted to the Department and the Tribunal indicate that the visa applicant remarried his wife but divorced her again in October 2013. The Tribunal accepts that the visa applicant formally divorced from his partner shortly after the application was made. The visa applicant and review applicant claim the visa applicant separated from his wife before the application was made and that the relationship broke down. For the reasons that follow, the Tribunal does not accept that evidence.

11. Firstly, the Tribunal has had regard to the information obtained during the site visit made by DIBP officers to the visa applicant’s home. The site visit report (which the Tribunal discussed with the applicant pursuant to s 359A of the Act) offers the following information.

    a.DIBP staff visited the settlement where the visa applicant lives. Three women were in front of the house. The DIP staff asked where Seema Nand (the visa applicant’s wife) lived and were pointed to one of the houses in the compound.

    b.At the house the DIBP staff were greeted by the visa applicant and a woman dressed in traditional Indian attire. The woman moved to the kitchen and later after speaking to Ms Anjula, she left the premises.

    c.DIBP officers asked the visa applicant’s daughter Shivika the name of the woman and she stated ‘Seema’. The DIBP officer also asked the aunt, who was visiting from New Zealand, the name of that woman and she stated ‘Seema’.

    d.In one of the bedrooms the DIBP officers observed women’s perfume. The visa applicant’s daughter Shivika said she does not use perfume as she is only 14 years old.

12. The review applicant provided written submissions to the Tribunal on 4 August 2015 and 15 September 2015 addressing these matters. The applicant expressed concerns about the findings of the DIBP staff. He claims that in this case, there was no evidence that the couple lived together other than a bottle of perfume.  He claims when the officers spoke to women outside of the house, they asked where the applicant’s wife ‘lived’ and the women knew that at some point in time, she lived in that house but they did not talk about the family problems and separation / divorce. The woman dressed in the traditional attire was the wife of the applicant’s cousin who came to the nearby temple, as well as the applicant’s mother from Australia.

13. In his statement, the visa applicant also pointed out that the women the Departmental officers spoke to did not know about his divorce and thought he and his wife were married and that she lived with him. They thought DIBP staff were welfare officers and did not understand what the DIBP officers were asking. The applicant reiterated that the other woman in the house was a distant relative who does not live on the premises. His aunt who was questioned is uneducated and that is why she confirmed that the woman was his wife as she says ‘yes’ to anyone speaking English to her. With respect to the perfume bottle, the applicant states that it has been lying there for years. Similar comments had been made by other parties in the written statements provided to the Tribunal.

14. The Tribunal finds such claims unpersuasive. The applicant claims that the three women outside of the house pointed to the house where the wife lived but did not know about the divorce because it was not mentioned and they knew that the wife lived at the premises previously. The Tribunal is not convinced that those people would have sufficient information to know who the wife was, know her name, be aware that she was married to the visa applicant, yet not know that she had been living away from that house for at least two years by the time of the site visit. Whether or not they are educated, and whether or not they knew who the DIBP staff were, the Tribunal is not satisfied that they would have reasonably good knowledge of the visa applicant’s wife, including her name and place of residence, but at the same time not be aware of the separation and the new living arrangements that the visa applicant claims had been in existence for a long time. The review applicant also suggested to the Tribunal that the neighbours may be jealous but it is unclear what they may have been jealous of and why such jealousy would cause them to claim that the wife lives in that house.

15. The applicant claims that his aunt – who identified the wife at the time of the site visit – is uneducated and says ‘yes’ to everything when spoken to in English. The Tribunal considers that explanation utterly unconvincing. Firstly, the Tribunal does not accept that the DIBP staff would have a conversation in English with someone who obviously does not understand English and is unable to respond. The Tribunal is of the view that if the aunt did not speak English, the conversation would have either occurred in the local dialect or not at all. Secondly, the site visit report indicates that the woman was asked the name of another woman who left the premises when the DIBP staff arrived and she stated ‘Seema’. That is, contrary to the applicant’s claims, she did not say ‘yes’ to every question asked, she had in fact answered the question posed to her. Thirdly, and more importantly, the aunt knew who the DIBP staff were. She would have understood the significance of her answers and the serious repercussions for providing false or inaccurate information. In such circumstances, the Tribunal does not accept that she would have simply said ‘yes’ without understanding what was asked of her and without making any effort to understand the question. The visa applicant claims she is uneducated but the Tribunal is not satisfied that any particular level of education is required to know whether a person is married or divorced and to be able to state the name of the person. 

16. The visa applicant provided to the Tribunal a statement from his daughter, who denies having stated that the woman at the house was her mother. There is no obvious reason for the Tribunal to disregard the child’s evidence to the DIBP officers and prefer her evidence to the Tribunal. The Tribunal gives it little weight and prefers the unpractised evidence given during the site visit. The applicant also provided to the Tribunal photographs but since there are no photographs of any person taken during the site visit, the Tribunal is unable to carry out any comparisons.

17. Having regard to the information in the site visit, and having considered the explanations offered by the visa applicant, his relatives and the review applicant, the Tribunal considers the information gathered during the site visit to be more convincing. The Tribunal considers it much more likely that such information was accurate and that the DIBP staff were advised during the site visit that it was the visa applicant’s wife who was present at the premises. The Tribunal has formed the view that the review applicant’s and the visa applicant’s present explanations are nothing more than an attempt to rectify the deficiencies of the earlier evidence.

18. Secondly, the Tribunal has formed the view that the visa and review applicants, as well as the review applicant’s wife, have not been truthful in their evidence to the Tribunal and that calls into question their explanations in relation to the site visit and the visa applicant’s divorce. The Tribunal’s concerns were discussed with the review applicant in accordance with s. 359AA of the Act and are noted below.

19. The Tribunal questioned the parties about the visa applicant’s employment and arrangements in relation to the children.

    a.The review applicant informed the Tribunal that the visa applicant works as a car driver. He said the son only works a few hours a day, leaves the children in the morning and collects them after a few hours when he returns from work. The review applicant said nobody helps his son and there is no other person taking care of the children. When asked how the visa applicant can support himself with little income, the review applicant said he provides the financial support to his son.

    b.The review applicant’s wife said the visa applicant drives a mini-bus, leaves at 5 am and comes back at 7 pm. Ms Narayan said her sister in law helps take care of the children while her son is at work and she charges for her service. Ms Narayan said she sends money to her son once a year for Diwali but she did not know if her husband sends any money to the son. (The review applicant and the visa applicant subsequently explained that his wife gives him the money for Diwali and he sends the money to the visa applicant, which appears to contradict his wife’s statement that she is unaware whether he sends money to the visa applicant.)

    c.The visa applicant informed the Tribunal is that he works on weekend only and he does not work on weekdays because he has to take care of the children. The visa applicant said he does not pay anyone to help him take care of the children. (He claims his aunt only worked for a week and does not want to come and he has not told his parents about it.) The review applicant said that his mother had never sent him money. 

20. To explain these inconsistencies, both the review applicant and his wife suggested that the review applicant did not visit Fiji for a number of years and is not familiar with his son’s affairs. The Tribunal does not accept this explanation because the Tribunal does not consider that physical presence in the country is necessary to acquire knowledge about his son’s affairs. The review applicant confirmed that he speaks to his son by phone.

21. In his post-hearing submission the visa applicant suggested there were different arrangements during his mother’s visit to Fiji but the Tribunal’s questions were not directed at that brief period of time. The Tribunal also does not accept that there is such limited communication between the visa applicant and his parents that they would be unaware of his living arrangements. 

22. The Tribunal acknowledges that these matters are not determinative in deciding whether the visa applicant’s relationship with his partner had ceased (although the Tribunal considers the arrangements he made in relation to the care of the children to be relevant to the issue at hand). What is significant about this evidence, however, is the parties’ credibility. The inconsistencies in the parties’ evidence suggest that they have not been truthful in their evidence and that may indicate that they have been equally untruthful in their evidence concerning the visa applicant’s relationship with his wife.

23. The Tribunal also questioned the parties about the circumstances of the site visit.

    a.The review applicant’s evidence to the Tribunal is that there were two other families present at his son’s the house during the site visit, in addition to the visa applicant’s family. The review applicant said there was another relative at the house named Seema, so when the neighbours and the child referred to Seema, they spoke of the relative and not the visa applicant’s wife.

    b.Ms Narayan was asked who was present at the house at the time of the site visit. She said that only her sister from New Zealand and her brother in law’s daughter called Roshni were there. There was nobody else there and nobody by the name of Seema. When the Tribunal pointed out that that the review applicant’s evidence was entirely different as he suggested there was another relative in the house called Seema, Ms Narayan’s evidence changed and she said there was a distant relative or neighbour called Seema working in the garden at the time of the site visit. The visa applicant suggested in his declaration of 24 September 2015 that he did not see that person who was in the neighbouring garden. The Tribunal does not consider it plausible that his mother would refer to a person working in the visa applicant’s garden if she worked at another house and also that the visa applicant would not have seen a person working outside of his home.

    c.The visa applicant told the Tribunal at the time of the site visit, his children, mother and mother’s sister from New Zealand and a relative called Roshni were in the house. He said there was nobody called Seema in the house. The visa applicant expressly stated there was nobody in the garden and that that he has no garden at all.

24. To explain these discrepancies, the parties claimed that the review applicant was not present in the household and did not know the circumstances. The Tribunal does not accept that evidence. Firstly, the review applicant himself volunteered evidence about the presence of Seema in the household. Secondly, and more importantly, the Tribunal is not convinced that in the two years since the application was refused, the couple would not have discussed the circumstances of the site visit, given that it is the main reason the application was refused.

25. The Tribunal has formed the view that the parties have been deliberately untruthful in their oral evidence to the Tribunal. Again, the Tribunal is concerned that the parties’ lack of candour in relation to these matters also affects the veracity of their evidence in relation to the visa applicant’s relationship with his spouse.  

26. In his declaration sworn on 24 September 2015 and provided to the Tribunal the visa applicant suggested that his parents’ interview should not be reflecting as his personal evidence. The visa applicant claims that due to his parents’ age and sickness, he only tells them what they want to hear. His mother does not remember dates. The visa applicant claims that his statement is correct and he could have told his parents information about the events in Fiji but he chose not to so as not to get them distressed. The Tribunal does not consider such claims persuasive. Neither the review applicant nor his partner appeared to be particularly confused or incapable of giving evidence, either due to their old claimed age or forgetfulness or for any other reason. Their answers to the questions posed by the Tribunal were meaningful and responsive, even if they were not the answers that the visa applicant would have liked. When the review applicant did not know the answer, he said so. The Tribunal does not accept the visa applicant’s claim that due to age or health issues, his parents’ evidence is unreliable.

27. The Tribunal also does not accept that the visa applicant simply does not tell his parents anything. Neither the review applicant nor his wife stated during the hearing that the visa applicant does not tell them anything about his affairs. There were some matters of which they claimed no knowledge and they provided answers in relation to other matters. They did so willingly. The review applicant identified his wife as a witness to give evidence to the Tribunal and he repeatedly informed the Tribunal that his wife was present during the site visit and was be aware of what occurred at the time. The visa applicant did not offer that explanation in the course of the hearing. Multiple written submissions were made to the Tribunal and at no time did the visa applicant suggest that his parents’ evidence would be unreliable. In such circumstances, the Tribunal does not accept that the review applicant and his partner were not familiar with the visa applicant’s affairs. Rather, the Tribunal has formed the view that this explanation is nothing more than an attempt to explain the inconsistencies in evidence.

28. The Tribunal has formed the view that the parties have not been truthful in their evidence to the Tribunal concerning the visa applicant’s living arrangements and the circumstances of the site visit. For that reason also, the Tribunal does not accept their evidence that the visa applicant’s relationship with his former wife had ceased.

1. The review applicant provided the Tribunal evidence of the visa applicant’s divorce in November 2013. The Tribunal is satisfied that following the application for the visa, the visa applicant formally divorced his wife. However, having regard to the concerns stated above, the Tribunal is not satisfied that at the time of the application, the visa applicant and the wife were separated and living separately and apart.

2. Having considered the totality of evidence before it, and having regard to the concerns noted above, the Tribunal is not satisfied that by the time the application was made, the visa applicant’s relationship with his spouse had ceased. The Tribunal does not accept they had separated by the time the application was made. In reaching this conclusion, the Tribunal acknowledges the visa applicant’s evidence that the Fijian law requires 12 months’ separation before the divorce can take effect but the Tribunal is not convinced that the court conducts any independent inquiries about the separation or does anything more than adopts the evidence of the parties. As such, the fact that the parties were formally divorced in late 2013 does not satisfy the Tribunal that they separated by late 2012.

3. The Tribunal finds that at the time the application was made, the visa applicant continued to be in a spousal relationship with Seema. The review applicant confirmed in his oral evidence to the Tribunal that the visa applicant’s former partner Seema had a father in Fiji. As such, the Tribunal is not satisfied that the applicant, and the applicant’s spouse, had no near relatives other than those usually resident in Australia. The Tribunal is not satisfied that the visa applicant meets r. 1.5(1)(c). The Tribunal is not satisfied that he is a remaining relative of the sponsor. He does not meet cl. 115.211.  The secondary applicants do not meet cl. 115.321.

4. When making the application, the visa applicant stated he was born in January 1975. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as he is not old enough to be granted an age pension under the Social Security Act 1991. Therefore the Tribunal is not satisfied that the visa applicant meets the definition of the term ‘aged dependent relative’ in r 1.03 and cl.114.211 of the Regulations.

5. There is no evidence before the Tribunal that at the time of application the visa applicant claimed to be a Carer of an Australian relative, as required by cl.116.211, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123A(3)(c). The Tribunal finds that the visa applicant had not made a valid application for a Carer visa.

   Conclusion

6. For the reasons set out above, the Tribunal is not satisfied that the visa applicant is the remaining relative of an Australian Relative at the time of application for the purposes of cl.115.211.

   DECISION

7. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

   Kira Raif
   Senior Member