1604422 (Migration)

[2016] AATA 4460

1604422 (Migration) [2016] AATA 4460 (23 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Michael Batsa Owusu

VISA APPLICANT:  Mr Samuel Owusu Mintah

CASE NUMBER:  1604422

DIBP REFERENCE(S):  BCC2015/3860479

MEMBER:Tony Caravella

DATE:23 September 2016

PLACE OF DECISION:  Perth

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

Statement made on 23 September 2016 at 4:32pm

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 19 February 2016 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 14 December 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 delegate was not satisfied that on the evidence before him the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.   

5. The applicant applied to this Tribunal on 31 March 2016 for a review of the delegate’s decision.  A copy of the delegate’s decision record accompanied the application for review.  The Tribunal also received a number of documents, including:

   ·A certificate of participation indicating the applicant attended the 2015 National Diarrhoea in Children Management For Over-The Counter Medicine Sellers organised by the Pharmacy Council;

   ·A certificate indicating the applicant participated in Management of Cough, Cold and Catarrh meeting organised by Phamatrust Ltd in February 2016;

   ·A copy of a Chemical Seller’s Licence issued in the applicant’s name in Accra on 1 April 2005;

   ·Several copies of land plans / certificates of indenture for land which appear to show land registered in the name of the applicant and Mrs Vida Owusu-Mintah;

   ·Copies of two payslips issued in the applicant’s name for February and March 2016;

   ·A copy of a photo ID card issued to the applicant indicating he has the title ‘Senior Industrial Rel. Officer’;

   ·Several copies of birth certificates and a marriage certificate.  

6. Having considered the material before it, and having found it could not make a decision in the applicant’s favour on that material alone, on 22 August 2016, the Tribunal wrote to the applicant and invited him to appear before the Tribunal on 23 September 2016 to give evidence and present arguments.  The invitation was addressed to the applicant’s migration agent.

7. In the hearing invitation, the applicant was advised that if he does not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal. It also states that in the absence of appearance by the applicant the Tribunal may dismiss his application for review without any further consideration of the application or the information before it.   

8. The applicant did not appear before the Tribunal on 23 September 2016.  Nor is there any record held by the Tribunal that the applicant has made any contact seeking a postponement or rescheduling of the hearing, or to explain why he failed to appear at the hearing. 

9. Sections 362B of the Migration Act provides that if an applicant has been invited under s.360 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Alternatively, it may dismiss the application without any further consideration of the application of information before the Tribunal.[1]

   [1] Sections 362B and 426A were amended by Migration Amendment (Protection and Other Measures) Act 2015 (No.35 of 2015) to enable the Tribunal to dismiss an application if the review applicant fails to appear at the time and date of the scheduled hearing.

10. The power to make a decision on the review or to dismiss proceedings for non-appearance only arises if the hearing invitation complied with the relevant statutory requirements. The Tribunal has examined the hearing invitation which was sent to the applicant’s registered agent. Having done so, the Tribunal finds the invitation was given to each relevant person by one of the methods in s.379A and that the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given. It also finds that a warning as to the effect of ss.362B(1A) appears in the invitation to hearing. On this basis, the Tribunal finds the power to proceed to a decision pursuant to s.362B is not engaged.

11. The Tribunal then considered whether it should exercise the discretion to proceed to make a decision on the review without taking further action to allow or enable the applicant to appear before it.  In this regard, the Tribunal is satisfied that the hearing invitation was sent to the correct address.  Further, there is no evidence before the Tribunal that this was not received.  Further, it appears the applicant received the delegate’s decision record, as evidenced by the fact that a copy of it was provided to this Tribunal by the applicant.  The Tribunal also finds that the delegate’s concerns and findings as to the evidentiary shortcomings in relation to the visa application are made clear in that decision record.  In light of these circumstances, and in the absence of further communication from the applicant or his agent, the Tribunal considers it appropriate to proceed to make a decision on the review without taking further action to allow or enable the applicant to appear before it.    

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother and his family and to tour the southwest of Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

15. 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)). Based on the evidence before the Tribunal, it finds the applicant has not previously held a visa in relation to Australia.  There is therefore no evidence that the applicant has complied, substantially complied, or failed to comply for that matter, with a previously held visa. 

16. 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.

17. In the absence of the review applicant or the applicant providing evidence on the question of whether he will comply with these visa conditions, the Tribunal cannot be satisfied that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject

18. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In considering this provision, the Tribunal had regard to, but is not bound by, the Department’s policy guidance contained in its Procedures Advice Manual (PAM3) which 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:

    oongoing employment

    othe 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

    oproperty, or other significant assets, owned in their home country and

    owhether 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:

    oeconomic 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

    oeconomic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.

    othe 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

    omilitary service commitments

    ocivil disruption, including war, lawlessness or political upheaval in the applicant’s home country. 

19. The Tribunal considered the various documents which were submitted to it and the nature of which are set out in detail above.  These include copies of documents which indicate the applicant’s employment and training, and his property ownership.  The birth certificates also support the applicant’s claimed identity which was a further point raised by the delegate, although was not the reason for the visa refusal.

20. However, the Tribunal is not satisfied that the documents which have been provided, or all of the evidence when considered cumulatively, addresses to the Tribunal’s satisfaction the question of the applicant’s intention.  Put another way, the Tribunal finds these documents which have been submitted may not be inconsistent with an intention not to comply with the relevant visa conditions.  Nor are they necessarily inconsistent with the applicant having an intention not to stay temporarily in Australia for the purpose for which the visa is granted.  There are a range of other factors and circumstances, some of which are discussed in the Department’s policy guidance, which the Tribunal considers it necessary to assess so as to reach a point of determining whether it is satisfied the applicant meets cl.600.211.  For example, the Tribunal has not been able to test or question the applicant about his personal circumstances in his home country or general conditions in the home country that might encourage him to remain in Australia or to return to his country.    

21. Having considered the evidence before it and the individual components under cl.600.211(a), (b), and (c) respectively, and 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

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

    Tony Caravella
    Member