1511830 (Migration)

[2015] AATA 3853

1511830 (Migration) [2015] AATA 3853 (30 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Svetlana Kondratenko

VISA APPLICANT:  Mr Sergei Kondratenko

CASE NUMBER:  1511830

DIBP REFERENCE(S):  bcc2015/2479293

MEMBER:Fraser Syme

DATE:30 November 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 30 November 2015 at 10:06am

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 26 August 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 26 August 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 the delegate was not satisfied the visa applicant genuinely intended to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 5 November 2015 to give evidence and present arguments. The review applicant is the sister of the visa applicant. 

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages, although the review applicant addressed the Tribunal in fluent English.

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

   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 the review applicant and her family. This is a purpose 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). This would be the first occasion the visa applicant has been granted an Australian visa, so the requirements of 600.211(a) are not applicable.

11. 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

12. The Tribunal discussed with the review applicant at the hearing, its primary concern was whether the visa applicant would depart Australia prior to the expiry date of any visa granted to him. It discussed too in reaching a conclusion about that concern, it would assess the applicant’s intention to comply with conditions 8101 and 8201. The Tribunal noted the visa applicant initially intended to attend the wedding of the review applicant’s daughter, which was solemnised prior to the hearing and queried whether there were any other family events which the visa applicant now wished to attend. The review applicant indicated there were no other events. She explained that although it was not evidenced in the visa application, the visa applicant was supposed to walk his niece down the aisle at her wedding, because he played a father role to his niece during her childhood in Russia. The review applicant did mention this matter in email correspondence with Tribunal staff at the time she was seeking priority processing of the review in hope that the visa applicant may still have time to attend the wedding. She discussed her and her daughter’s previous travels to Russia and how the visa applicant was focusing firstly on repaying his mortgage and then on developing his business as reasons why, despite her many invitations, he had been unable to visit her in Australia in the past. They all desired he would be able to see her and her family’s lifestyle in Australia at least once.  The Tribunal indicated nevertheless the desire for the visa applicant to visit the review applicant’s family was a factor which weighed in favour of granting the visa.

13. In relation to condition 8201, the review applicant told the Tribunal the visa applicant was a man in his 50s who was a business owner. He had not undertaken any study for many years and had no intention to study in Australia. The Tribunal is satisfied in the circumstances of the visa applicant, he stated intention not to study in Australia is genuine.

14. In relation to condition 8101, the Tribunal noted the many of the documents the review applicant provided related to her circumstances. It agreed her stable financial position and she and her partner offering their home to accommodate the visa application and to cover his expenses in Australia (he is to pay his own airfare and medical insurance) were factors in favour of granting a visa to the visa applicant. They suggested the visa applicant would not need to work in Australia.

15. The Tribunal discussed too inconsistent evidence regarding the salary level of the visa applicant. In the material he provided to the delegate, the visa applicant stated his monthly income was R15,000. At the hearing, the review applicant provided a letter in Russian and English on the letterhead of the visa applicant’s business stating his ‘monthly base salary’ was R45,000. The review applicant explained more about the visa applicant’s business. He was owner of his own advertising and public relations agency. She provided various explanations for the inconsistencies in the visa applicant’s income. Firstly, she explained R15,000 is the official minimum salary, but she agreed that was very low (a comment made by the delegate in the decision) and equated to something similar to the income of a cleaner. Then she said the visa applicant prepared the visa application in a hurry and did not put down an accurate figure. She further explained that due to the nature of his business, the visa applicant’s income varied. Sometimes it was higher and sometimes it was lower. The Tribunal noted the letter she provided to it stated R45,000 was the visa applicant’s ‘base’ salary. With the assistance of the interpreter, she explained the Russian version of the letter did not include the word ‘base’. The visa applicant’s friend helped him to write the English version of the letter. The Tribunal commented the significant difference in the claimed income figures of the Tribunal caused it to have concerns regarding the genuine intentions of the applicant. That was a factor weighing in favour of not granting the visa.

16. The Tribunal considers the evidence as more equivocal as to whether the visa applicant will comply with condition 8101. The financial capacity of the review applicant and her partner weigh in favour of finding the applicant’s intention to comply with 8101 is likely to be genuine. However, his providing significantly different evidence as to his income undermines that his intention to comply with condition 8101 is genuine. The Tribunal has had regard to the explanations provided by the review applicant as to why the visa applicant provided such inconsistent evidence. While it acknowledges the English and Russian versions of the letter differ as to use of the word ‘base’, it still does not explain why the visa applicant’s income has tripled. That the visa applicant prepared his visa application in a hurry too does not explain why he would put such a low figure in the visa application for his income if that figure was incorrect. If the visa applicant’s income is such a low figure, that would be an incentive for him to work in Australia. That the visa applicant has then later provided a letter tripling his income further undermines his intention to comply with condition 8101 is genuine. For those reasons, the Tribunal is not satisfied the visa applicant has genuine intention to comply with condition 8101.

17. For the sake of completeness, the Tribunal notes it discussed with the review applicant at the hearing other relevant matters (cl.600.211(c)).  It discussed the visa applicant’s family circumstances in Russia, his property ownership and his previous overseas travel. Those matters generally weighed in favour of finding the visa applicant had genuine intentions to stay temporarily in Australia for the purpose for which the visa is granted. However individually and collectively, they do not outweigh the Tribunal’s finding above as to the applicant’s not having a genuine intention to comply with condition 8101.

18. For the above reasons the Tribunal is not 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 not met.

    DECISION

19. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Fraser Syme
    Member