1807603 (Migration)

[2019] AATA 6138

1807603 (Migration) [2019] AATA 6138 (24 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1807603

MEMBER:Kira Raif

DATE:24 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 24 October 2019 at 10:12am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – doesn’t genuinely intend to stay temporarily in Australia – family, employment, properties  and lack of English insufficient incentives to return to home country – strong incentives to remain in Australia – daughter, grandchild, husband, lucrative employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.612, 600.231; Schedule 8, Visa Conditions 8503, 8531

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 15 January 2018 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 is a national of Sri Lanka, born in [year]. She applied for the visa on 28 November 2017. 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 applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. The sponsor (the review applicant) seeks review of the delegate’s decisions.

3. The review applicant appeared before the Tribunal on 17 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

5. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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.

6. In the present case, the visa applicant seeks the visa for the purposes of visiting family members and visiting Australia. These are purposes for which a visa in the Sponsored Family stream may be granted: cl.600.231.

7. 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)).

8. 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.

   Does the visa applicant genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted?

9. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

10. The visa applicant stated on the application form that she intended to visit Australia for up to three months between December 2017 and February 2018 to visit her daughter and son in law.

11. The delegate noted that the applicant had some family ties to Sri Lanka but found these were insufficient to act as an incentive for the visa applicant to return to her home country and the delegate considered it would be ‘more likely’ the visa applicant would seek to change her status in Australia to remain permanently. The delegate acknowledged that the visa applicant owns a property in Sri Lanka but noted that land was an easily transferrable asset that could be sold or leased from Australia. The delegate also noted that the visa applicant’s family in Australia offered support for her visit.

12. The review applicant provided a written submission to the Tribunal on 10 October 2019 and a further one on 23 October 2019. The review applicant states her mother wants to visit Australia to visit her daughter and granddaughter. The granddaughter was born in [year] and is an Australian citizen. The visa applicant intends to spend 3 months in Australia. The review applicant states that at her daughter’s age, developing a close relationship with the grandmother is very important and she wants her mother to establish a bond with her daughter and if the visa applicant is not able to travel to Australia, that would be a disadvantage to the development of the relationship between the child and her grandmother. The review applicant states that the visa applicant is employed as [Occupation 1] and is married and they have children, aged [age range] with only one child in Australia. The review applicant states that the visa applicant’s husband was granted a visa in Australia and is permitted to stay in Australia until August 2023. Her other children live in Sri Lanka and three of her children are dependent on the visa applicant as they are at college or school and live with the visa applicant. It is stated that the visa applicant is closely attached to them and being a “leader of the house” in the absence of her husband, she is closely attached to her family since their births and that would constitute a strong incentive for her to return to Sri Lanka.

13. The review applicant refers to the visa applicant’s employment as a [Occupation 1] since 1997 and the ownership of two properties, as well as her income. At the commencement of the hearing the review applicant provided to the Tribunal a copy of the visa applicant’s employment contract dated 1997.

14. The review applicant submits the visa applicant has major incentives to return to Sri Lanka, including the presence of four children in Sri Lanka under her care and other relatives and family members, her employment, properties and income and her lack of English. The review applicant states that the visa applicant has no issues with the Sri Lankan authorities and the political situation has improved. The review applicant states that her husband would support her mother’s stay in Australia.

15. The review applicant states that she has previously sponsored her father and also her mother for the Visitor visa, which was refused in 2017. Since then, the visa applicant travelled to India in September – October 2019.

16. In oral evidence, the review applicant told the Tribunal that her mother wanted to come to Australia to meet her grandchild, who is now [a certain age]. If her mother travels to Australia, she would be able to see the grandchild and establish a bond with the child. She will visit some temples and depart Australia after three months.

17. The review applicant states that her mother is a [Occupation 1] and has been doing that job for more than twenty years on a full-time basis. When asked how she could take such a long period of leave from her employment, the review applicant explained that her mother is entitled to annual leave and will take additional leave without pay. She has not yet been approved for three months’ leave but the review applicant claims there is an assistant who can do the job in her mother’s absence. Following the hearing, the review applicant provided to the Tribunal evidence that leave has been granted. The review applicant states that her mother would not be able to get a pension unless she returns to her job. As noted elsewhere, the Tribunal does not consider ongoing employment to be a strong incentive for the visa applicant to return to Sri Lanka given that she may have the opportunity to get better paid employment or other income in Australia.

18. The review applicant told the Tribunal that her family depend on her mother’s salary, as well as the rental income. The Tribunal does not accept that evidence. Firstly, the review applicant’s evidence to the Tribunal is that her mother would be taking unpaid leave during her trip to Australia and that would suggest that the family can survive without that income, at least for a limited time. Secondly, if the visa applicant chooses to work in Australia, in breach of condition 8101, or if she makes another visa application and is entitled to Centrelink or other payments, she may receive a better income than the salary and the pension she would forego during the period of her stay in Australia.  Indeed, the review applicant told the Tribunal that the visa applicant is receiving the salary of approximately AUD350 a month and her pension would be $250 a month. The review applicant told the Tribunal that her father’s Centrelink payment is [a certain amount] per week. It appears that if the visa applicant were to seek another visa in Australia and receive Centrelink payments, such payments would be significantly higher than the visa applicant’s salary and pension entitlements in Sri Lanka. As such, the Tribunal does not consider that any financial entitlements in Sri Lanka, including rental income, salary and future pension, would constitute a significant incentive for the visa applicant to return to Sri Lanka. This is particularly so because the applicant has not satisfied the Tribunal that her mother would not be granted longer leave from employment and would be unable to resume her employment, even if she remains in Australia for longer than the period permitted by the visa. That is, the Tribunal is not satisfied the visa applicant would lose her pension entitlements if she was to remain in Australia for a longer period in breach of condition 8531.

19. The review applicant states that her three siblings, aged [different ages] are students and are dependent on their mother for food and shelter. In her written submission of 24 October 2019 the review applicant explained that her mother provides these children with food, accommodation and financial assistance.  The Tribunal notes that two of the siblings are adults and even if they are students and are unmarried, the Tribunal is not satisfied that they are incapable of taking care of themselves and without the supervision of their mother. The Tribunal accepts the review applicant’s evidence that they may be dependent because they live at their mother’s house and their mother is paying for their expenses. The Tribunal also accepts that it is culturally common for the children to be dependent on their parent until they move out of the family home. However, the Tribunal is not satisfied that such dependence is necessary. The Tribunal is mindful that the children can continue to reside at the visa applicant’s home, whether or not she also resides there or establishes residence in Australia and, as stated elsewhere the Tribunal has formed the view that the visa applicant may continue to receive income even if she remain in Australia, so the financial dependence can continue. Thus, the Tribunal does not consider that the claimed dependence of the three children upon the visa applicant, whether or not assistance is available from other relatives such as the visa applicant’s eldest daughter, would not necessarily act as a strong incentive for the visa applicant to return to her home country during the period of validity of her visa.

20. The Tribunal is also of the view that the visa applicant’s youngest child, who is a minor, can be cared for by the elder siblings. The review applicant suggested that because her older siblings are studying, they would not have the time to care for the younger sibling. However, the review applicant also told the Tribunal that during the visa applicant’s three months stay in Australia, her elder sister can take care of the children so the Tribunal is of the view that alternative arrangements can be made for the care of the three children, and in particular the minor child, in Sri Lanka. The review applicant claims that it is only a short term arrangement and cannot be done on a permanent basis because of the sister’s own family commitments but the review applicant has not satisfied the Tribunal that the arrangement can be put in place for the precise period of three months but not for a longer period. The Tribunal is not satisfied that between three adult siblings, arrangements cannot be put in place for the care of the [youngest sibling]. In these circumstances, the Tribunal is not satisfied the presence of the children would constitute an incentive for the visa applicant to return to Sri Lanka.

21. The review applicant also said that her sister would not have the financial capacity to look after the children, but her evidence to the Tribunal is that her mother has a property which generates rental income which can be collected by the sister. That is, the visa applicant’s visit to, or longer stay in, Australia may not significantly reduce the family’s income.

22. The review applicant told the Tribunal that her mother has two properties, one in her own name and one in her and the husband’s names. One is being rented and her mother collects the rent and during her visit to Australia, her elder sister could collect the rent. The review applicant claims that her sister cannot collect the rent for a longer period because it is her mother who is responsible. The Tribunal does not accept that evidence. If the sister is able to collect the rent for three months during the visa applicant’s stay in Australia, the Tribunal is not satisfied that she could not do the same on a longer term basis and the review applicant was unable to offer a meaningful explanation as to why that cannot occur. The other property is where the family presently resides and will continue to reside during the visa applicant’s stay in Australia. Thus, the Tribunal does not consider that the presence of the properties would constitute an incentive for the visa applicant to return to Sri Lanka.

23. The review applicant states that her mother is an independent woman and does not speak English and would not wish to be dependent on anyone. She wants to come to Australia to visit her grandchild. She will have to return to Sri Lanka to look after the three children and the grandchildren. In her post-hearing written submission to the Tribunal the review applicant states that her mother would not be able to find a job in a regional area and would not be able to maintain a satisfactory lifestyle and would not wish to be dependent on the charity of her family. The Tribunal is mindful that none of these considerations applied in relation to the visa applicant’s husband, who did forego the presence of his children, a property in Sri Lanka, lack of English, limited job opportunities and his independence in order to remain in Australia. Should the visa applicant choose to remain in Australia beyond the period authorised by her visa, she will have the support of her daughter and son in law and also, importantly, that of her husband. She is able to communicate with her family in her own language and will be able to travel with their support, should she wish to do so.

24. The Tribunal accepts that the presence of children and grandchildren in Sri Lanka, employment and other commitments, when considered together, may constitute an incentive for the visa applicant to return to Sri Lanka. However, the presence of the review applicant, her child and the visa applicant’s husband in Australia would equally constitute a strong incentive for the visa applicant to remain in Australia. 

25. The review applicant told the Tribunal her father travelled to Australia by boat and was granted a five year SHEV visa in 2018 on the basis of political fear. She said that her parents have been married for 32 years. In the Tribunal’s view, that relationship, and the length of this relationship, would constitute a far stronger incentive for the visa applicant to remain in Australia after the period of permitted stay than her employment and family and other commitments in Sri Lanka.

26. The review applicant initially told the Tribunal that she was unaware of the claims her father made in his visa application but she then told the Tribunal that her father sought the visa for political reasons and the same circumstances do not apply to her mother because they were personal to her father. The visa applicant said that her father was jailed many times and after he left Sri Lanka, they continued to live in the country without any problems. She said that her mother holds a government job and has not had any problems. However, the review applicant also told the Tribunal that she was not really familiar with her father’s claims. Given the vagueness of these claims, the Tribunal cannot be satisfied that whatever circumstances applied to the review applicant’s father would not also apply to her mother, or at least that her mother will not claim that these circumstances apply to her, should she decide to stay in Australia for a longer period

27. In her post-hearing written submission the review applicant refers to the country information and states that the situation for Tamils in Sri Lanka has improved, that the visa applicant personally has no issues with the Sri Lankan authorities and there is no risk of her overstaying. The Tribunal is mindful that despite the country information that the situation for Tamils in Sri Lanka has improved, the visa applicant’s husband did travel to Australia and did make an application for a visa in Australia and was granted such a visa. While the review applicant claims that the same circumstances do not apply to her mother, the Tribunal considers the general reference to the country information and the situation in Sri Lanka to be unhelpful. It was not applicable to the review applicant’s father and that may also be the case for the review applicant’s mother.

28. In her submission of 23 October 2019 the review applicant outlined the reasons her father feared returning to Sri Lanka and stated that none of these circumstances apply to her mother. Whether or not the visa applicant has any problems in Sri Lanka, the Tribunal is concerned that the visa applicant has a strong incentive to remain in Australia for a longer period, to stay with her husband and daughter and grandchild, and that she may wish to make an application for a visa, whether or not with a genuine expectation of being granted such a visa, in order to prolong her stay in Australia, thereby breaching condition 8531 of her visa.

29. The review applicant told the Tribunal that her mother does not speak English and would be reliant on her and her family. The review applicant referred to her work and study and family commitments and said that her mother wants to be independent and not rely on anyone. However, the Tribunal is mindful that the visa applicant’s husband is also in Australia and the visa applicant would not need to rely on her daughter but could rely on her husband while in Australia and she is certainly able to communicate with her husband without any knowledge of English. While the Tribunal accepts that the visa applicant may wish to retain her independence, the Tribunal considers other considerations may be more significant.

1. The review applicant states that her mother’s children, other relations, properties and employment would cause her to return to Sri Lanka. For the reasons stated elsewhere, the Tribunal is not satisfied that would necessarily be the case.

2. In her submission to the Tribunal of 23 October 2019 the review applicant’s representative notes that the review applicant’s oral evidence was sincere, straightforward and consistent and that she was a credible witness. The Tribunal has formed the view that the review applicant was evasive in relation to her father’s application, first stating she was unfamiliar with his claims and later stating that he applied for the visa on political grounds which do not apply to her mother. Nevertheless, the Tribunal acknowledges that the review applicant’s evidence appeared to be sincere, straightforward and consistent. However, the Tribunal does not consider the review applicant’s credibility to be determinative when deciding whether the visa applicant has a genuine intention to stay temporarily in Australia.

3. There is no evidence that the visa applicant has previously travelled to Australia and the visa applicant has not demonstrated her past compliance with visa conditions. There is nothing to suggest she has not complied substantially with any visa conditions.

4. In considering whether the visa applicant will comply with visa conditions if the visa is granted, the Tribunal has had regard to her circumstances.

5. As noted above, the Tribunal accepts that the presence of children and other relatives, work and other commitments could constitute an incentive for the visa applicant to return to Sri Lanka. However, the Tribunal has formed the view that the visa applicant would also have strong reasons to remain in Australia, including the presence of her daughter and grandchild, as well as her husband in this country and the availability of more lucrative employment.

6. The Tribunal is also mindful that the visa applicant intends to spend up to three months in Australia and arrangements have been made for the care of children and grandchildren, as well as for leave from employment, during the period of the extended stay. The Tribunal is of the view that if arrangements can be made for the care of children and other relatives during the period of the visa applicant’s intended stay in Australia, they could also be made for a longer term so that the presence of such family in Sri Lanka would not constitute a significant incentive for the visa applicant to return to her home country. The Tribunal expressly rejects the review applicant’s claim that all arrangements could be made for the three months period but not for longer. The review applicant has not satisfied the Tribunal that that is the case. The Tribunal further finds that the visa applicant has a strong incentive to stay in Australia after the end of permitted stay, contrary to condition 8531.

7. The Tribunal accepts that the visa applicant is employed and owns properties from which she derives income. However, the Tribunal is not satisfied that such income cannot be claimed if the visa applicant remains in Australia. That is, the visa applicant may be able to continue to derive the income from the properties, if she continues to own them, whether or not she returns to Sri Lanka. As for the visa applicant’s employment, while it may constitute an incentive for her return, it is also possible that if the visa applicant were to find employment in Australia, her income may exceed her income from employment in Sri Lanka, so that the employment in itself may not constitute a significant incentive for return.

8. The review applicant states that she and her husband would personally ensure that the visa applicant complies with visa conditions and they are aware that any non-compliance can affect future attempts by the family to obtain visas to visit Australia. The Tribunal acknowledges that the review applicant’s husband had previously sponsored family members to visit Australia and they appear to have complied with visa conditions. The Tribunal acknowledges that undertaking but it is difficult to see how the family in Australia can ensure the visa applicant’s compliance with visa conditions.  The Tribunal also acknowledges the review applicant’s undertaking to provide a security of up to $10,000.

9. The Tribunal accepts that the visa applicant has considerable incentives to return to Sri Lanka. However, the Tribunal has formed the view that the visa applicant may also have a desire and the intention to remain in Australia for a longer period and that she may seek another visa in Australia to enable her to stay in this country. The Tribunal is not satisfied the visa applicant will comply with conditions 8531 and 8503. Having regard to whether the applicant intends to comply with visa conditions, and other relevant matters, the Tribunal is not satisfied the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal is not satisfied the visa applicant meets cl. 600.211.

   Conclusion

10. 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

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

    Kira Raif
    Senior Member