1602021 (Migration)

[2016] AATA 4617

1602021 (Migration) [2016] AATA 4617 (1 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jesus Santos Quinteros

VISA APPLICANT:  Mr Luis Miguel Quintero Barrientos

CASE NUMBER:  1602021

DIBP REFERENCE(S):  BCC2015/3296602

MEMBER:Christine Cody

DATE:1 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 01 November 2016 at 3:31pm

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 17 December 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 9 November 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the visa applicant, a citizen of Peru, applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream. The primary purpose of the application was for the visa applicant to visit his family members and attend the wedding of his nephew in Australia.

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. A number of supporting documents were supplied to the Department, including the visa applicant’s national identity document, a letter to the Australian embassy stating that the review applicant (the visa applicant’s brother) is an Australian Citizen of Peruvian origin who has lived in Australia for many years with his wife and children. They have had their own business for more than eight years and they will support all of the costs and expenses related to the visa applicant’s visit including airfares, accommodation and board. The other siblings in Australia will offer their support if necessary.

5. 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 that the visa applicant intends a genuine visit only.

6. The review applicant lodged an application for review with the Tribunal; providing a copy of the delegate’s decision record as well as a statement disputing the delegate’s decision.

7. The Tribunal wrote to the review applicant, informing him that on the evidence before it, it was unable to make a favourable decision. He was invited to attend a hearing before the Tribunal, and it was noted that the Tribunal may wish to take evidence from the visa applicant.

8. The review applicant appeared before the Tribunal on 28 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, and the review applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish, Spanish (Central and South America) and English languages. The review applicant sometimes sought to speak in English, and the Tribunal agreed, emphasising to the review applicant that it is most important that he and the Tribunal understand each other. The Tribunal was satisfied that when the review applicant conversed in English (and while using the interpreter), he was able to understand and present evidence and arguments. The Tribunal noted that it was not bound to follow the delegate’s decision record and it would be making a fresh decision.

9. The Tribunal put its concerns to the review applicant about the visa applicant’s intention, and also put information to him pursuant to s.359AA of the Act. He responded to the information; the visa applicant was also given a chance to respond to the concerns, noting that much of the concerns related to him.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. 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)).

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 Tribunal has also considered all other relevant matters (cl.600.211(c)). In doing so, the Tribunal considered, but is not bound by, the Department’s policy guidance contained in its Procedures Advice Manual (PAM3).

15. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231. However, the Tribunal is not satisfied that the applicant intends a genuine visit in Australia; in particular it is not satisfied that the applicant intends to leave, nor that he does not intend to work. The Tribunal’s concerns have arisen for the reasons set out after the following discussion of the evidence.

16. The written and oral evidence, and documents, before the Tribunal state that the visa applicant was born in 1965 in Peru. He resides in Callao in Callo. He is divorced and both applicants said that he does not have a current relationship.

17. The visa applicant, his brother, is a 50 year old divorced and has three children, as well as siblings, who live in Peru.

18. He has three non-dependent children who would be remaining behind: Jose aged 29 years, Hector aged 27 years, and Bridget aged 21 years. It was noted that they are all over 18 years. The review applicant agreed that the children are responsible for themselves however he said that the visa applicant, as a good father, still provides them with support.

19. The visa applicant has worked in the transport business for many years; most recently he has been driving a taxi for the last four years (since 2012). He rents his own taxi from which he earns income.

20. The length of stay was proposed to be a three month holiday during the time the review applicant’s son Julio was going to get married (November 2015). Although that time has passed; the visa applicant would still like to attend Australia for up to 3 months to visit relatives including Julio, and his brothers Jesus, Luis and Daeve, and his sisters Viviane and Rosa, all of whom reside in Australia. There are 11 siblings in total; five of whom are in Australia; the others are in Peru.

21. The Tribunal noted that in the Hearing Invitation letter, the review applicant was requested to provide to the Tribunal, seven days prior to the hearing, details of any close relatives who have come to Australia with in the past 10 years; any other close relatives he has sponsored or invited to visit within the past 10 years. The Tribunal noted that the review applicant had not provided any such information to the Tribunal and asked why. In response, he said he is not clear why not, he has his own business and he is very busy and he apologises. The review applicant gave some general (yet vague) information about his siblings, and how they came to stay in Australia.

22. It was stated that the visa applicant will be supported by the review applicant and his wife who will pay for the travel tickets and everything while he is in Australia. The review applicant has his own business; he imports products from Latin America and the USA such as drinks, packaged fruit. He has been working as a sales manager in the business for eight years.

23. The review applicant’s wife said that she and the review applicant had been married for 18 years and they have two children. She believes that the visa applicant will come as a visitor and will return to Peru, he has his own work to do and he depends upon his work in order to make a living. He is a hard worker and he likes to support his elder children and grandchildren and he doesn’t want to falsely remain in Australia.

24. The visa applicant said that his intentions are sincere, and his reasons for travelling overseas are to see his family, he has no intention to stay in Australia, and he has children and grandchildren who have his support in Peru.  

25. The Tribunal asked the review applicant why he believes that the visa applicant only intends a genuine visit, he said the visa applicant really wants to see how they are living here and he wants to follow Australian law and he will return on time. The review applicant is willing to put up a bond. The review applicant said that none of his brothers or sisters are illegally present, they are all law abiding citizens and they earn their living without taking money from the government.

    The delegate’s concerns

26. The Tribunal noted that the delegate’s concerns included that:

    ·     There was no evidence of previous international travel or demonstrated previous compliance with immigration laws in Australia or other countries;

    ·     The visa applicant is willing to leave behind his family members for three months, such that they do not appear to be incentives for him to return.

    ·     He is a self-employed taxi driver, and so a three month vacation was not consistent with his employment as he would need the income generated to support himself.

    ·     Considering the employment opportunities in Australia and the large disparity between the wages available in Peru and those in Australia, the delegate is not satisfied that the visa applicant is not motivated by other reasons such as the possibility of work rather than a genuine visit to Australia.

    ·     The visa applicant failed to submit any evidence of property ownership or ownership of other significant assets that would encourage him to return home to Peru.  It is a matter of concern as to how he can afford to travel for an extended period when he has not provided any evidence of his financial situation to fund a trip to Australia. The onus is on the applicant to demonstrate he has the means and intention for a genuine visit.

27. The delegate was not satisfied that the applicant has demonstrated sufficient personal employment cultural and business ties in Peru to establish that he intends a genuine visit to Australia. While acknowledging the purpose of the applicants intended travel is to visit his family, this does not in itself demonstrate that the only intent is a genuine temporary stay.

28. The Tribunal considered that the review applicant made some reasonable arguments in his letter to the Tribunal in commenting on the delegate’s concerns in the decision record. For example he agreed that that during a three month holiday, the visa applicant would not be obtaining income as a taxi driver; however he said that this would not be difficult for the visa applicant as, instead of earning income, he would be receiving funds from his siblings in Australia to support his stay in Australia. Secondly, he agreed that the visa applicant’s financial position would not make it possible for him to cover his travel and holiday to Australia but that the review applicant would be covering all of his expenses, and he would be staying in the family home. The other siblings in Australia will be willing to help should that be necessary. However, while these appear to be reasonable responses, the Tribunal is not satisfied that these overcome its concerns.

29. The Tribunal also notes that the review applicant’s letter to the Tribunal suggested that there was a strong element of discrimination by the delegate because the visa applicant comes from a country which is not as affluent as Australia and because the visa applicant does not have substantial financial means. The Tribunal notes that the delegate appears to have applied the law and discretion, and it notes that financial conditions in both the country of origin and in Australia are relevant factors for consideration.

    Past applications

30. In the review applicant’s letter to the Department, he advised that the visa applicant had applied several times and has been refused visas to Australia. The review applicant specified that the visa applicant had applied for a visitor visa, a student visa, and a fiancée visa, but once the relationship with his fiancée deteriorated, this resulted in a rejection of that visa. The hearing invitation letter also asked the review applicant for information relevant to previous visa applications made by the visa applicant; this was not provided.

31. At the hearing, the Tribunal asked the review applicant to specify the visa applicant’s previous visa applications; initially the review applicant said that the visa applicant had only applied for three visas, visitor visa, fiancée and student visa; he then said that he had actually applied for three or four visitor visas, as well as the fiancée and the student visa. He said that all of the visa applications had been refused and the review applicant said that on each occasion the delegate was not satisfied that the visa applicant’s intentions were genuine.

32. The visa applicant acknowledged previous visa applications, and said that his fiancée and he broke up because they were not communicating and she was not stable. He could not agree with her. She was the one who ended the relationship. The Tribunal noted that he had applied for a student visa and he agreed; the Tribunal asked what he had proposed to study in Australia, and he said he doesn’t recall well, he thinks it was administration/management

33. The Tribunal put information to the review applicant pursuant to section 359AA of the Act sourced from the Departmental notes on the system. The Tribunal noted that much of the information related to the visa applicant, and asked the review applicant whether he wished the Tribunal to put the information to him while the visa applicant listened, on the telephone, so that the visa applicant could have a chance to comment on the information as well, or the review applicant could have a chance to discuss this with the visa applicant before commenting. The review applicant agreed that the visa applicant could hear the information which was being put to the review applicant.

34. The information  related to past visa applications, and  false information and documents which have been provided, and dob-in allegations:

    ·     The visa applicant had applied for previous visas in an attempt to come to Australia. These included an application for a fiancée visa which had been cancelled on 22 May 2003 as a result of the Australian citizen sponsor withdrawing her support after the visa had been granted, but prior to the visa applicant’s entry into Australia.

    ·     An allegation was received that the visa applicant’s relationship to an Australian citizen was contrived in order to assist the visa applicant to come to Australia. The sponsorship had been withdrawn twice.

    ·     Further, the visa applicant had given inconsistent information concerning his children: he had not declared any children in his fiancée application: later he had claimed in an application that he had children.

    ·     The visa applicant had attempted to make an application for a tourist (longstay) visa in 2004, declaring an intention to visit his fiancée and siblings in Australia. On 10 March 2004, this application was refused because the Department was not satisfied that there was a genuine intention to visit, and noted that he had been previously sponsored for a prospective spouse visa by his fiancée, but that the sponsorship had been withdrawn.

    ·     Checks made by the Department as to the employment reference, payslips and bank statements submitted with the long stay visitor visa application showed that these documents were not genuine.

    ·     It was also noted that an application for a higher education sector (TU573) was lodged by the visa applicant on 22 February 2007, intending a course of general English and an advanced diploma of business management and a bachelor of business, however it appeared that the student program enrolled in had a high profile of concern essentially supporting non-genuine students to come to Australia.

    ·     The visa applicant had also claimed in  his student visa application that he had not been previously refused or had a visa cancelled, however this information was incorrect given that  he had previously been refused a fiancée visa and a student visa.

    ·     The interview [31 May 2007] conducted  at the time of his student visa application indicated that he had a lack of knowledge about his education and career ambitions which indicated that he did not have a genuine intention to study [Q:  why do you wish to study this course? A:  Because I need to have better opportunities here in Peru. I was given the chance to study in Australia and to improve my English. Q:  How will this course benefit your career? A: To keep on (silence- he added nothing). Q:  What relevance is a study to previous studies undertaken?  (He was unable to answer)…].

    ·     The visa applicant, when asked, did not tell the Tribunal that he had applied to study a Bachelor of Business degree at a university. Although the Tribunal acknowledges that some time has passed, and it notes the visa applicant’s response was that he didn’t really recall, he was going to study management/ administration, it considers that his failure to remember that he wanted to study a Bachelor of Business degree in Australia indicated that he was not intending to come to Australia as a genuine student.

35. In his responses, the review applicant said that they are respectful of the law and they want to assure the Tribunal that they will make sure that the visa applicant returns home. While the Tribunal has considered this response, it notes that it did not respond specifically to the Tribunal’s significant concerns: about the visa applicant’s past immigration history, which indicates that he is prepared to rely upon false documents and give false evidence and that he is not a witness of truth concerning his intentions in coming to Australia, and that the review applicant is aware that the visa applicant wants to come to Australia no matter what and does not have a genuine intention to visit.

36. The review applicant said he doesn’t have much to say, he just wants to invite him for a few months and the review applicant can pay or sign anything. He is sure that his intention is to return and he is good person. He later said that they are human, not perfect, Immigration in Chile might assert that one does not have enough money or a good job; there have been some mistakes in the past and these are not intentional.

37. The visa applicant was asked if he wanted to say anything about the information (after the review applicant agreed to this) and he said he has told the truth and if he is allowed to come, he promises his intentions are sincere; the minute he arrives he is prepared to sign a document confirming he will return back home.

1. The Tribunal has considered those responses however it does not find them persuasive. The Tribunal has significant concerns about the visa applicant’s past applications including the use of false documents.

   Other matters

2. The review applicant, his wife and the visa applicant assured the Tribunal that the visa applicant would comply with the conditions of the visa. The Tribunal has taken this into account however it does not consider that these assertions outweigh the Tribunal’s concerns.

3. During the hearing, the review applicant said on several occasions that he is so busy with his business that it is hard to keep things in his mind about his brother; or he said that he gets stressed. The Tribunal offered him to take his time but he said he was fine. The Tribunal is not prepared to accept that these matters can explain he difficulties with the evidence referred to above.

   Other siblings

4. The review applicant said that his five siblings are all genuine in Australia. As put to the applicant pursuant to s.359AA of the Act, allegations were received about both the review applicant and the visa applicant in 2003/2004 suggesting that the review applicant has arranged to bring several siblings to Australia through contrived marriages. Further, the Department notes showed that a sibling declared on the visa applicant’s long-stay visitor visa application form had first entered Australia on a tourist visa and did not depart and instead applied for a permanent spouse visa in Australia. The review applicant did not directly dispute this information, however the Tribunal notes the review applicant’s claim that the marriages of his siblings are still on foot; this would undermine the dob-in information. The Tribunal is not prepared to rely upon the dob-in information noting that the motive for the allegations is unclear. Even if the Tribunal accepted the review applicant’s evidence that his other siblings came to Australia as genuine migrants on the basis of their relationships (except for the one referred to in the Departmental notes), this does not overcome the Tribunal’s concerns about the visa applicant’s intentions as referred to above.

5. The review applicant asserted at hearing that some of his siblings have travelled to Australia, and they have returned. Even if the Tribunal accepts this is the case, this does not overcome Tribunal’s concerns about this particular visa applicant and whether or not he intends a genuine visit.

6. In conclusion, the Tribunal is prepared to accept that the visa applicant would like to see his family members in Australia, and that there is no evidence to suggest that the visa applicant seeks to study in Australia. The Tribunal also accepts that the visa applicant’s relatives would support him by providing airfare, accommodation, and spending money (if necessary) while he is in Australia, and that the review applicant would be willing to put up a bond. The Tribunal has also accepted that his siblings are lawfully present and that they all entered Australia on the basis of their permanent visas (except for one).

7. However, the Tribunal considers that the visa applicant’s persistent, unsuccessful efforts to come to Australia on numerous occasions, and his preparedness to provide false evidence and documents to support his past applications, suggests that he has a desire to remain in Australia and work, especially when taking into account his family ties in Australia. The Tribunal is not prepared to accept the assertions that he will return to Peru. The Tribunal is not satisfied that his taxi business (which is a moveable form of job), nor his adult children and his grandchildren (to whom he provides some support) are a sufficient incentive for him to return to Peru. The Tribunal does not accept that his ties in Peru outweigh his desire to remain in Australia. The Tribunal is not satisfied that the visa applicant has a genuine intention only to visit Australia.

8. 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

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

   Christine Cody
   Member