1514668 (Migration)

[2016] AATA 3454

1514668 (Migration) [2016] AATA 3454 (26 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ankica Kelemovic

VISA APPLICANT:  Mr Darko Kelemovic

CASE NUMBER:  1514668

DIBP REFERENCE(S):  BCC2015/2520710

MEMBER:Tony Caravella

DATE:26 February 2016

PLACE OF DECISION:  Perth

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 26 February 2016 at 10:26am

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 7 October 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 20 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 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.  In particular, and based on the evidence before the delegate at the time of decision, the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.   

5. The review applicant appeared before the Tribunal on 25 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mick Oreskovich and from the visa applicant and his wife Magdalena Zlojic.  The Tribunal hearing was conducted with the assistance of an interpreter in the Croatian and English languages.

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

7. At the hearing, the review applicant gave sworn oral evidence.  She began by saying she did not exactly understand the reason for the refusal of the visa to her son, that is the visa applicant.  She added that she felt the decision was unfair.

8. The review applicant went on to say that she wants her son to visit her because she has not seen him for more than four years.  She said that her medical condition also prevents her from travelling to Croatia to visit him.  She referred to the medical evidence being a letter from Dr Lingam Sam who she said she has been seeing for the past four years. 

9. The review applicant told the Tribunal she wants her son to visit for three months only. She said that she and the visa applicant are aware of the visa conditions that would be applicable.  She said the visa applicant would not work or study while in Australia.  She indicated she was also aware that a further condition that would apply if the visa is granted is that the visa applicant would not be permitted to stay beyond the period of the visa, and would not be eligible for a substantive visa other than a protection visa while in Australia.  She said her son would comply with these conditions.

10. When asked to describe the visa applicant’s circumstances, she said he lives in Makaraska in Croatia.  She said he has three children, a 16-year-old daughter, an eight-year-old son, and at five-year-old daughter.  She said his 16-year-old daughter, Ira, is studying to become a vet and that she travelled to Australia two years ago and remained here for two years and then returned to Croatia.  She said that Ira stayed with her and complied with all VISA conditions.

11. The review applicant told the Tribunal that the visa applicant works as a chef at a restaurant called the Plima Restaurant.  She said that he has been working there for about three years and that his employer is agreeable to her son taking time off to visit her in Australia.  When asked whether the visa applicant is a qualified chef, the review applicant said that he is a qualified waiter and has only two exams to pass before he gains his chef qualifications.  She said that he has worked as a waiter and chef for 13 years. 

12. The review applicant also said that the visa applicant has a lovely family in Croatia and that he would return to them.  She said that he has been with his partner, Magdalena, for 16 years although they are not married.  She said the visa applicant has more family in Croatia than he has here.  She said he has his father still in Croatia.  The review applicant submitted that she is divorced from her husband and that she lives in Australia with one daughter while her ex-husband lives in Croatia.  She said she also has one daughter in Australia.

13. When asked if the visa applicant owns property in Croatia, the review applicant said he does not own his own house, but that he lives in an apartment which is owned by his brother Goran.  She described the visa applicant’s circumstances as having a normal life and living decently.  She said they also have access to her pension in Croatia, and to a government allowance for their children.

14. When asked if the applicant has travelled outside of Croatia, the review applicant said he has travelled to Germany and Switzerland.  She also said that she has not made any previous application for her son to come to Australia.

15. The Tribunal asked the review applicant whether the visa applicant faced any problems in Croatia for reasons of his political opinion, his religion, or his ethnicity.  The Tribunal noted country information indicating that persons of Serbian ethnicity face significant discrimination in Croatia the review applicant told the Tribunal that they are of Croatian ethnicity and not Serbian, and that her son faces no problems for reasons of his political opinion, his religion, or his ethnicity in Croatia.

16. The Tribunal asked the review applicant who would pay the visa applicant’s airfare.  She replied that she would pay his airfare, and that her brother, Mr Oreskovich would also provide financial support if necessary.

17. The Tribunal heard evidence from Mick Oreskovich.  He said he was born in Croatia in 1942.  He said he is the review applicant’s brother.  He said he has been in Australia since 1964 and is an Australian citizen.

18. Mr Oreskovich said he’d like the visa applicant to come to Australia so he can visit his mother, and so that the visa applicant can also Mr Oreskovich’ sons and daughter.  He said he sponsored another nephew about a year and a half ago and that other nephew was granted a 12 month visa.  He said in that case, that other nephew got involved with a bad crowd and eventually Mr Oreskovich told that nephew to go back to Croatia. 

19. Mr Oreskovich told the Tribunal that he used to operate a painting business but he closed his business but he is still a workaholic. When asked whether he continues painting for a living, he told the Tribunal that he would not employ the visa applicant because he understands the visa applicant would not be permitted to work in Australia

20. The Tribunal spoke to the visa applicant by telephone.  He told the Tribunal he wants to come to Australia to see his mother, his sister, and his uncle.  He said his mother is an old woman and he wants to visit her.

21. The visa applicant told the Tribunal he works in a restaurant called the Plima which is located in Brela which is about 5 km away from where he lives in Makarska.  He said he works in the restaurant from April/May to November each year during the summer season.  He said during the winter he sells chestnuts. When asked when he would come to Australia if the visa were granted,  he said the intention is that he would travel to Australia in the month of March or April so that he can return to his job for the summer season. 

22. When asked what family he has in Croatia, he replied he has his father, brother, his defacto wife and his three children.

23. When asked about any previous travel, he told the Tribunal that he has travelled to Spain, Germany, Netherlands, Switzerland, Austria, the Czech Republic and other countries in Europe.

24. The applicant told the Tribunal he has no outstanding problems with police in Croatia, and does not face harm for reasons of his political opinion or religion.

25. The applicant told the Tribunal as far as the economy of Croatia is concerned, it is not as bad as portrayed and that there is plenty of work in Dalmatia.

26. The Tribunal asked the applicant whether his life has been adversely affected by the influx of asylum seekers into Europe.  He replied that the asylum seekers are mainly just passing through on their way to northern Europe and have had no or little impact upon them.

27. The Tribunal spoke with the visa applicant’s defacto wife, Magdalena.  She told the Tribunal that she would be very pleased for the visa applicant to have the opportunity to see his mother and his relatives in Australia.  She said she can assure that the visa applicant would only stay temporarily.  She said they have a normal life in Croatia.

28. The Tribunal explained to the visa applicant that if the visa is granted, it would be granted subject to various conditions, including the prohibition to his working in Australia, prohibition to his studying in Australia, and that he would not be eligible for a substantive visa, other than a protection visa while in Australia.  It also explained that he would not be permitted to stay beyond the expiry of the visa if it were granted.  The visa applicant indicated he understood these conditions and that he would comply with them.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. 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.

31. In the present case, the visa applicant seeks the visa for the purposes of visiting his mother who he claims he has not seen in four years, and who he claims is not in good health,  He also claims he wants to see his uncle and cousins and he wants to celebrate his birthday in Australia.  The Tribunal finds that these purposes are consistent with the purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

32. 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)). In this case, it is not in dispute that the visa applicant has not previously been granted a visa to enter Australia.  There is therefore no evidence of any non-compliance with conditions of previously held visa, and nor is there any evidence of compliance, or substantial compliance, with a previously held visa. 

33. 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.

34. Having regard to the sworn oral evidence of the review applicant, and that of Mr Oreskovich, and that of the visa applicant himself, the Tribunal is satisfied they all are aware of the visa conditions that would apply to the visa if it were to be granted.  The Tribunal find the review applicant, Mr Oreskovich, the visa applicant, and his defacto partner all to be credible witnesses.  It places weight on the visa applicant’s evidence and undertaking that he will comply with the applicable visa conditions.  It also places some weight on the evidence of Mr Oreskovich who indicated that he would ensure his nephew did the right thing and complies with visa conditions.  In this regard, the Tribunal finds there will be some family pressure on the visa applicant, apart from his intention, to ensure he complies with the relevant visa conditions.  Having regard to all of the evidence, the Tribunal finds the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject.  

35. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In doing so, the Tribunal had regard to, but is not bound by, the Department’s policy guidance which is found in its Procedures Advice Manual (PAM3) which, in respect of cl.600.211(c) relevantly states:

    The ‘any other matter’ factor

    Some relevant considerations

    In establishing whether 600.211(c) is satisfied, relevant considerations of any other matter may include, but are not limited to:

    •Personal circumstances
    •Credibility
    •Purpose and period of stay
    •Previous immigration/travel history
    •Intel reports and profile.

    Personal circumstances

    Namely:

    •the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:
    •ongoing employment
    •the presence of close family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia
    •property, or other significant assets, owned in their home country and
    •whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance and
    •the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:
    •economic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia
    •economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.
    •the applicant’s personal ties to Australia, that is:

    •does the applicant have more close family members living in Australia than in their home country
    •is the applicant subject of adoption proceedings that have not been resolved in their home country

    •military service commitments
    •civil disruption, including war, lawlessness or political upheaval in the applicant’s home country.
    Note: If refusing a visitor visa in relation to the genuine temporary stay criterion, s65 delegates must take care not to confuse the applicant’s financial circumstances as an incentive to return and the applicant’s access to ‘adequate means of support’. They are separate factors and so must be considered separately.

    Credibility

    The applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application).

    Purpose and period of stay

    Whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with “tourism”).

    Previous immigration/travel history

    Previous immigration and travel history, such as:

    •previous visa applications for Australia
    •previous overseas travel, that is, has the applicant travelled to countries other than Australia.

    In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.

    Intel reports and profiles

    Information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department about nationals from the applicant’s home country. (Note: Even though they are still mentioned on various visitor visa application forms, Modified Non Return Rate (MNRR) statistics should not be used because no quarterly MNRR report has been published on the departrment’s website since June 2013.)

    Officers may request further evidence from the applicant, if considered appropriate, if departmental statistical or intelligence reports on migration fraud, or profiles based on such reports, indicate that there is a significantly greater likelihood of nationals from the applicant’s home country:

    •staying in Australia beyond the stay period of their visa or
    •having their visa cancelled or
    •being refused entry to Australia or
    •making asylum claims or applying for a protection visa.

    Note: The mere fact that an applicant matches the characteristics of a profile is not grounds to refuse to grant a visa. Profiles are merely an alert that closer scrutiny of the applicant’s circumstances might be required. All applications must be considered on their own merits taking into account all the information and supporting documentation provided by the applicant.

36. The Tribunal considered the visa applicant’s personal circumstances.  Based on the evidence before it, which it finds credible, the Tribunal finds the visa applicant is in a long term defacto spouse relationship in Croatia.  It also accepts the claim that he has three children from that relationship and they will all remain in Croatia if the applicant is granted the visa.  It also finds the visa applicant has his father living in Croatia, even though his mother and a sister live in Australia.  The Tribunal accepts the evidence is that the visa applicant has more family and relatives in Croatia than in Australia. 

37. The Tribunal accepts the evidence, as was put to the applicant at the hearing, and as was also considered by the delegate, that Croatia’s economy experiences significant difficulties at the present time.  It accepts country information which shows the unemployment level in Croatian is very high at around 17%.  However, it also accepts the evidence before it indicates the visa applicant has a job as a waiter/chef in a restaurant in Brela during the summer season, and then sells chestnuts during the winter.  While the Tribunal finds the applicant does not own his own home, the Tribunal accepts the visa applicant otherwise lives a reasonable life with his family and that his circumstances are such that this acts as a significant incentive for him to return to Croatia. 

38. The Tribunal considered the country information before it indicates that there is no civil disruption, or war, or lawlessness or political upheaval in the applicant’s home country.  It accepts his evidence that he is not at risk of targeting for harm for reasons of his political opinion, or for reasons of his nationality, or his race, or for reasons of his religion. 

39. The Tribunal found the applicant’s evidence to be credible and consistent.  It found him to be credible in terms of character and conduct.  It found no evidence of the applicant providing false or misleading information with the visa application or otherwise.

1. The Tribunal finds the visa applicant’s stated purpose for the visit, and the proposed duration of the visit and his proposed activities in Australia are reasonable and consistent with the purpose for which the visa would be granted. 

2. The Tribunal considered the applicant’s previous immigration/travel history and finds that although the visa applicant has not previously travelled to Australia, it accepts that he has travelled widely within Europe.  There is no evidence before the Tribunal to suggest the applicant has not complied with the visa and migration requirements of the countries he has visited in Europe.  It accepts the review applicant’s evidence that no previous visa applications for Australia have been made in respect of the visa applicant.  It also accepts that the visa applicant’s daughter, Ira, has travelled to Australia and that she complied with the relevant visa conditions to which her visa was subject.  It accepts that the visa applicant’s circumstances are different to his daughter’s, however, it also finds on the evidence before it that the visa applicant does accept the visa he seeks is a temporary one and requires him to comply with the nominated conditions.  

3. After having considered all of the evidence before it, the Tribunal concluded that the aggregation of the evidence indicates that the applicant does have a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. 

4. 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

5. 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.

   Tony Caravella
   Member