1503793 (Migration)

[2015] AATA 3423

1503793 (Migration) [2015] AATA 3423 (27 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs IRINA SIN

VISA APPLICANT:  Mr STANISLAV GERUSSOV

CASE NUMBER:  1503793

DIBP REFERENCE(S):  BCC2015/607881

MEMBER:Josephine Kelly

DATE:27 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 27 August 2015 at 9:30am

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 10 March 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 24 February 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he had failed to adequately demonstrate strong employment, financial and personal commitments that may support the likelihood of his compliance with conditions attached to his visa and his return home at the end of his proposed stay in Australia.

5. The review applicant appeared before the Tribunal on 25 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from her son, the visa applicant, her husband, and one of his employers. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

6. The review applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

9. In the present case, the visa applicant seeks the visa for the purposes of family visit and tourism.  They are purposes for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

11. The Tribunal can give no weight to this consideration because the visa applicant, who was born in 1986 and is a citizen of Kazakhstan, has never visited Australia.

12. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(3):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

13. The applicant claims to have been employed as a technician/trade worker in a food production company called “Sladovnica” since 15 April 2102. The business in located in Pavlodar, the same town as he lives.  He provided an original and copy of an employment reference letter from his employer dated 23 February 2015 which said that he worked as a delivery driver from 2010.  He also provided a translation and original of a Salary statement from his employer dated 23 February 2015 that set out his annual salary received after tax and contribution to pension savings fund as 997,632 tiyn.

14. During his oral evidence, the visa applicant said that he had worked for that firm for about five years and it is part-owned by his maternal aunt.  He told the Tribunal that he could only remain in Australia for a month because that is all the time he could get off work.  The Tribunal notes that he applied for a stay up to three months.  He described his work, including travelling long distances into the country twice a week for which he can earn 20,000 tiyn each trip.

15. The visa applicant has about ten years of English education, at school and prior to that, with tutors. He filled out the visa application form in  English with the assistance of his mother and step-father. He has no opportunity to speak English in his daily life, but does use it when looking up information about computer hardware on the internet.  He also uses an internet translation program.

16. The Tribunal accepts that the applicant does intend to comply with the conditions of his visa, and has no intention to work or study during his visit. In coming to that conclusion, the Tribunal has taken into account the financial information provided, referred to in more detail below, which shows that he and separately, the review applicant and her husband, have  financial resources available to support him and his wife and child to travel to and remain in Australia for up to three months, taking into account that they will have no accommodation costs while staying with the review applicant and her family in Australia.

17. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

18. In his visa application, the applicant claimed to be married.  He provided a translation of a marriage certificate that stated his marriage was registered on 23 September 2011.  He also claimed that his spouse and son, who was born on15 June 2012, would be travelling with him to Australia. He provided a copy of the identification page from his son’s Kazakhstan passport that was issued on 12 February 2015.  The visa applicant will visit his step-father and his mother who is the review applicant, who is an Australian permanent resident. His sister who was born in 1998 lives with their mother in Australia.

19. The visa applicant claimed that he would have about $3000 with him in Australia but was assured that all the flight fares and expenses relating to his stay in Australia would be covered by his mother and step-father. The review applicant provided a bank statement for the period 1 July 2014 to 31 December 2014. She also provided a copy of the husband’s payslip for the period 28 February 2015 to 13 March 2015 showing an annual salary of approximately $60,000.  After the hearing, she provided various other bank statements for herself and her husband

20. The visa applicant provided a copy of the identification from his Kazakhstan passport that was issued on 18 August 2011.

21. The review applicant provided the following documents to the Tribunal in support of the application:

    ·a list of “closest extended family members” of her son in Kazakhstan which included his father and paternal grandmother, numerous uncles, aunts and cousins;

    ·a “Certificat D;immatricualtion”, in English which appears to show that the visa applicants owns a 1997 Toyota Chaser;

    ·an original and translation of a letter dated 26 July 2015 from the uncle of the visa applicant’s wife confirming that the visa applicant and his niece visited Germany from 10 to 25 August to;

    ·the letter from Australian friends of the review applicant her husband and their daughter supporting the application including a reference to the visit by the review applicant’s father in law and sister in law last year;

    ·a statement that the visa applicant had travelled to Germany and France in 2009 with his then fiancee; that the passport was changed due to age and Kazakhstan law and so the only evidential documents left were several photographs and copy of the flight ticket, a copy of which was provided; and in 2006 the visa applicant travelled to China to assist the review applicant in a business-related trip to Urumqi city, of which there is only one photograph left;

    ·photographs of the review applicant and his wife in Germany and in front of the Eiffel Tower;

    ·the photograph of the visa applicant in China;

    ·a bank’s statement dated 17 March 2015 from Centercredit stating that the review applicant has an account balance as of 16 March 2015 of US$8200 or 687,360.81 tiyn.

22. The Tribunal finds that the visa applicant has travelled to Germany and Paris in 2009 with his present wife before they married and returned to Kazakhstan. He had previously travelled to a city in south-west China with his mother for her business.  She told the Tribunal that she was renovating her hair salon and bought tiles and equipment for that business in China because it was inexpensive. 

23. The visa applicant’s step-father, the review applicant’s husband, paid for his father and sister to visit Australia for a month at the beginning of this year.  His step-father, mother and sister came to Australia legally in June 2011, his step-father having obtained a 457 visa.  His step-father’s employer’s evidence was impressive.  She said that he is an honest and trustworthy person who is very valuable to the business.  He has very specialised skills. His employer spoke warmly of the review applicant. She holds both the review applicant and her husband in the highest regard.

24. The Tribunal has taken into account that apart from his father, all the visa applicant’s immediate family, his mother, sister, wife and son, would be in Australia if he visits, which would be a reason for him to remain.  However, he spoke warmly of his father and of his role in the life of the visa applicant and his young son. As noted above, his maternal aunt is a part-owner of the business for which he works.  The Tribunal has also taken into account the documents setting out the visa applicant’s extended family in Kazakhstan. The Tribunal accepts that his mother is one of 11 children. The Tribunal also takes into account the evidence of the review applicant that the visa applicant’s in-laws live  in a small town near the city where the visa applicant and his wife, live and his wife has said that she cannot leave them.   

25. Based on the evidence of both the visa applicant and the review applicant, the Tribunal accepts that the visa applicant and his wife and child live in an apartment the review applicant and the visa applicant own.  He does not have to pay rent.  He owns a 1997 motor vehicle.  He told the Tribunal that he lives frugally. He said that part of those savings were a wedding gift.  Given his savings, the Tribunal accepts that he does live frugally.  His mother, the review applicant and his step-father expressed their surprise at the extent of his savings. The Tribunal’s impression was that they had said that they would pay for the visit because they thought he would not be able to afford to come otherwise.  The Tribunal accepts Mr Sin’s evidence that the visa applicant has more savings than the review applicant and her husband, taking into account their bank records, including their credit card debt.

26. The Tribunal accepts the review applicant’s evidence that she and her family found it very hard to establish themselves in Australia, although she was fortunate that her husband had a good job and she was able to study English at TAFE for two years before starting work as a hairdresser. Her husband reinforced that claim, stating that although he had passed his IELTS before coming to Australia, he found every day interactions difficult to understand.  The Tribunal accepts that the review applicant does not want any problems with immigration by having her son not comply with his visa.  It accepts that she has talked to her son and his wife about the possibility of coming to Australia. That was when the visa applicant’s wife said that she could not leave her parents.  The review applicant’s advice was to visit Australia and see the country and then decide.  As her  husband had before coming here, the visa applicant should then study English and save.

27. The Tribunal takes into account the review applicant’s evidence about the low wages in Kazakhstan, the small middle class and that she does not know how her sisters survive because the US dollar is very high against the Kazakhstan tiyn and that her son has a good job by local standards. 

28. The review applicant arrived in Australia in 2011 and did not attend her son’s wedding held later that year.  She has not seen her grandson.

29. Taking into account all the information before it, for the reasons set out above, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are met.

    DECISION

30. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Josephine Kelly
    Member