1508046 (Migration)

[2016] AATA 3173

1508046 (Migration) [2016] AATA 3173 (28 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs RAJANIE UDAYACHANDRAN

VISA APPLICANT:  Ms VIJEYALAKSHMI SIVARAJA

CASE NUMBER:  1508046

DIBP REFERENCE(S):  BCC2015/1349954

MEMBER:Josephine Kelly

DATE:28 January 2016

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 28 January 2016 at 12:41pm

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 11 May 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 29 April 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 Sponsored Family 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 of concerns about her intention to reside permanently in Australia, as demonstrated by her pending application for an aged dependent relative visa as of 15 August 2013.  

5. The review applicant appeared before the Tribunal on 27 January 2016 to give evidence and present arguments. The Tribunal found it unnecessary to speak to the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) 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 visiting and spending time with her two daughters and their families, which includes three granddaughters. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. I have taken into account all the information provided by the visa and review applicants to the Department and to the Tribunal.  The oral evidence the review applicant gave at the Tribunal was particularly helpful in making this decision.  

11. 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)).

12. The visa applicant visited Australia for one month in 1993.  She is a Tamil from Batticaloa, in Eastern Sri Lanka, an area heavily affected by the civil war which began in July 1983 and ended in May 2009 when the Sri Lankan government announced its military victory over the Liberation Tigers of Tamil Eelam.[1]  Her husband did not come to Australia. She complied substantially with the conditions of her visa in 1993.

    [1] DFAT Country Information Report, Sri Lanka, 18 December 2015 at [2.1], “the DFAT report”.

13. She visited India in 2009. She has not visited Norway or Canada.  The representative said that she plans to do so. I give little weight to those matters because they do not relate to Australia.

14. 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.600.612):

    ·8101 – must not work in Australia

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

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

15. The visa applicant is a 75 year old widow who speaks Tamil.  I am satisfied that she intends to comply with the conditions of her visa that she not work or engage in study or training in Australia for more than three months.

16. I have taken into account that the visa applicant has applied for an aged dependent relative visa and is on the waiting list.  I accept the evidence of the representative that he advised the review applicant to have her mother make the current application because he has had other Tamils from regions of Sri Lanka affected by the civil war who have been granted visitor visas which have allowed them to visit Australia while awaiting the outcome of their other permanent visa application which may take years to be issued.  I accept that having applied for the permanent visa indicates that the visa applicant’s links to Sri Lanka are such that she is prepared to leave if she is issued a permanent visa to come to Australia.  Her ties with Sri Lanka include having a son and two grandchildren in the Batticaloa area and having a life interest in a property.  In Australia, she has the relatives listed above.  The visa applicant also has sons in Canada and Norway. 

17. The review applicant is supporting the visa applicant financially.  The visa applicant receives a pension in Sri Lanka but it is insufficient to meet her needs.

18. I take into account that the security conditions in Sri Lanka, and particularly in Batticaloa, have improved significantly since the end of the civil war. The review applicant returned to Sri Lanka in January 2014 for the first time since 2003 when she returned because of her father’s death.  She was satisfied in January 2014 that it was safe to take her family. They stayed for a month.  The security conditions are now not the disincentive to return that they were during and for some time after the end of the civil war.  That finding is supported by the information and analysis in the DFAT report.  I have also taken into account that the visa applicant and her husband who was a teacher, remained in Batticaloa throughout the civil war.  It was an area under the control of the Sri Lankan Army.

19. Although the visa applicant has monthly medical checks, which is appropriate for her age, she has no adverse health history that causes me to have concern about the purpose of her visit to Australia.

20. On the evidence before me I find that the loss of a bond would not be an incentive for the visa applicant to return to Sri Lanka because the review applicant and her family have substantial financial resources. 

21. I have taken into account that the visa applicant applied for a visitor visa in 2010 which was refused by the Department and by this Tribunal.  The review applicant also applied successfully to this Tribunal for the review of the Department’s decision to refuse the visa applicant the aged dependant relative visa in 2013. The decision was published on 31 July 2014.  She has followed the legal avenues available to her in relation to Australian visas.

22. Taking into account all those circumstances, I find that the visa applicant does intend to comply with the condition of her visa that she will not remain in Australia after the end of her permitted stay.  I do not consider that there is any reason in the circumstances to make a finding contrary to the visa applicant’s stated intention that she wishes to visit her daughters and their families temporarily.  She may have years to wait before a decision is made about her permanent visa application.  Wishing to visit her family during that period is reasonable.

23. There are no other relevant matters to take into account.

24. For the above reasons 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

25. 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
    Senior Member