1509196 (Migration)

[2016] AATA 3121

1509196 (Migration) [2016] AATA 3121 (25 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr ROHANA LIYANAARACHCHI

VISA APPLICANT:  Mrs RATHNA RUPAWATHI MENIKE GAMAGEDARA

CASE NUMBER:  1509196

DIBP REFERENCE(S):  BCC2015/1379095

MEMBER:Josephine Kelly

DATE:25 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 25 January 2016 at 1:23pm

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 13 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 13 May 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 the visa applicant’s personal circumstances show insufficient incentive to comply with the conditions of a visitor visa and depart Australia given the prevailing political, security and economic conditions in Sri Lanka.

5. The review applicant appeared before the Tribunal on 22 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

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. The Tribunal has taken into account the supporting documents provided to the Tribunal but has relied mostly on the detailed evidence provided during the hearing.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting her son and his family, which includes two sons and a daughter ranging in age from 11 to 18 months.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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 has no history of travel to Australia and therefore this consideration is not relevant.  She and her husband did apply for a visa in 2012 which was refused.

13. 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.

14. The visa applicant is 74 years of age and has never worked outside the home.  She takes care of her husband who is 84 years of age.  He was a businessman before he retired.  His eye sight is very poor. They live in southern Sri Lanka, east of Colombo.  The journey takes about two or two and half hours, depending whether the journey is by car or train. Their three married daughters live in Colombo.  The visa applicant has two married brothers and three married sisters in Sri Lanka.

15. Her youngest daughter is a teacher, another is married to the manager of a large company and the other is married to a businessmen.  The visa applicant visits her daughters and their families in Colombo once a month or every two months and stays a week.  A servant and neighbours take care of her husband if he does not go with her.  He goes if they go by a motor vehicle but not if the journey is by train.  If she comes to Australia, her daughters will take care of their father, either in their homes or at his home.

16. The visa applicant’s oldest daughter has three daughters, the second daughter has one son and her youngest daughter has two daughters. Her oldest grandchild has just finished high school and is currently working in a bank.  The other grandchildren are studying at school. 

17. The visa applicant and her husband do not go out very much because “we are quite old now” she said.  They attend the temple regularly, following their religious customs.   

18. The visa applicant wants to see the place where her son, the review applicant, lives.  She cannot stay for long because she needs to take care of her home and her husband. She may stay one or two months.   

19. The review applicant has returned to Sri Lanka almost every year.  He last went in November 2015 and came back at the end of December.  His family is still there.  They will come back at the end of this month.

20. I accept that there was no army presence during the civil war or afterwards in the area where the visa applicant and her husband live and have lived for at least 50 years. That is consistent with the Department of Foreign Affairs and Trade country report on Sri Lanka.  The civil war was generally confined to the north and east of Sri Lanka, although there were incidents in Colombo and other places.  The visa applicant and her family are Sinhalese.  

21. The review applicant pointed out that his parents have spent all their savings and earnings on their children’s education and provided marriage dowries for their three daughters.  In their culture, it is the children’s turn to take care of them.  He is sponsoring his mother’s visit and will provide all financial support for her visit. His father transferred the house into the review applicant’s name when he migrated to Australia, however, they will live there for the rest of their lives.

22. I have taken into account the review applicant’s migration history.  He claimed that there is no current civil and political instability in Sri Lanka and his parents live a normal happy and settled life.  He and his family return their almost every year.  They belong to the majority of Sinhalese and feel safe among their people. I accept that the area in which his parents live is safe and the majority of the population is Sinhalese.

23. Taking into account all those matters, I am satisfied that the applicant will not work or study in Australia or stay beyond the time permitted by the visa.  She has commitments to her husband and other family members in Sri Lanka and a routine around them and the temple near her home.  

24. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  I have taken into account the visa applicant’s stated intention to visit Australia and the review applicant’s evidence about her intention. I accept that her intention is to stay temporarily in Australia for the purpose for which the visa is granted, to visit her son and his family to see where and how they live in this country. 

25. 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

26. 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