Amalia (Migration)

[2019] AATA 5665

Amalia (Migration) [2019] AATA 5665 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Amalia

VISA APPLICANT:  Mrs Elmia

CASE NUMBER:  1805130

HOME AFFAIRS REFERENCE(S):          CLD2018/17673297

MEMBER:Melissa McAdam

DATE:18 December 2019

PLACE OF DECISION:  Sydney

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 18 December 2019 at 4:26pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine intention to stay temporarily for purpose of visa – visiting sister and friends, and holiday – previous travel to Australia on four occasions – subsequent visa refused because employer/travel companion breached visa conditions – notice of refusal sent to old address, so no opportunity to respond at the time – no other family in Australia – husband, elderly mother, other family and stable employment in Indonesia – mother and other family’s previous travel to Australia, with compliance to visa conditions – review applicant and husband’s accommodation and support of visa applicant – review applicant wishes to sponsor other family in the future – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 20 December 2017 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 18 December 2017. 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 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 visa applicant provided the following information in her visa application:

   a.She is a 37 year old married woman from Kota Jambi in Indonesia.

   b.She wanted to visit Australia between 30 December 2017 and 25 January 2018 to see her sister and friends and have a holiday. Her sister, the review applicant, lives in Australia with her husband and two children.

   c.The visa applicant’s husband will remain in Indonesia while the visa applicant visits Australia.

   d.She has worked as a company director for over 2.5 years.

   e.She has been refused a visa in Australia in the past.  She previously applied for a visa and travelled to Australia with her former employer, Zainah. Zainah breached her visa conditions which impacted on the visa applicant as well.  But it had nothing to do with the visa applicant. The visa applicant departed Australia as required and she has no intention of breaking any rules.  The visa applicant and Zainah had a work dispute which resulted in the visa applicant leaving Australia after two weeks.  She did not breach her visa.

   f.The visa applicant has visited Australia four times to see her sister and holiday.

   g.She has always abided by Australia’s laws and done the right thing.

   h.The review applicant has family in Australia and the visa applicant would never do anything to jeopardise their relationship with the law.

   i.She submitted copies of the following documents:

   i.Her Indonesian passport;

   ii.Her Indonesian Identity Card;

   iii.Her Indonesian Marriage Certificate;

   iv.A letter from her employer;

   v.Her bank account statements;

   vi.A letter from her brother-in-law that he will be responsible for the visa applicant’s visit to Australia;

   vii.Her brother-in-law’s Taxation Notice of Assessment for 2017;

   viii.Her brother-in-law’s Australian passport; and

   ix.Several documents in the Indonesian language.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because she previously had a visa cancellation on 28 September 2015 in relation to a previous visit to Australia with a person who overstayed in Australia.

   Information to the Tribunal

   Pre-Hearing Submission

6. On 11 December 2019 the applicants submitted the following written information to the Tribunal:

   i.A list of names of close relatives who have visited Australia in recent years.

   ii.A letter from  the Director of the Jakarta Mitra Sejahtera Midwifery Academy, dated 10 December 2019, stating that the visa applicant has served at the academy as the Head of Administration since August 2015.

   iii.The visa applicant’s updated Bank Account statement.

   iv.The visa applicant’s Indonesian Marriage Certificate.

   v.Several untranslated documents in Indonesian language.

   Tribunal Hearing

7. The review applicant appeared before the Tribunal on 18 December 2019 to give evidence and present arguments.  The Tribunal also received oral evidence from the review applicant’s husband, Mr Hefky Karaman.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

8. The following is a summary of the information provided by the review applicant in the hearing:

   a.Zainah owned the company in which the visa applicant, Elmiah, worked.  In 2014 Elmiah told Zainah she was thinking of having a holiday in Australia in December.  Zainah told Elmiah she wanted to come too. 

   b.The review applicant had often met Zainah when she visited her sister Elmiah at her workplace in Indonesia, during her holidays there. Zainah asked the review applicant to sponsor her visit to Australia too so she and Elmiah could come together. The review applicant had good and positive thoughts about Zainah so she agreed to help sponsor her.

   c.The review applicant was due to deliver her baby in March 2015 so Elmiah postponed her trip to Australia until then.  Elmiah intended to stay in Sydney for two weeks with her sister and then return to Indonesia. Zainah intended to travel around Australia more so they both booked separate return tickets back to Indonesia.

   d.Elmiah and Zainah travelled to Australia together in March 2015. The review applicant’s husband picked them up from the airport.  At the review applicant’s house a female friend of Zainah’s came and picked Zainah up. They left together.

   e.Two days later the review applicant gave birth. Zainah and her female friend visited the review applicant and brought her a gift.

   f.Later Elmiah went to meet Zainah in Darling Harbour to go shopping. This time Zainah was with a male friend.  Elmiah said goodbye because she was returning to Indonesia and Zainah was about to go to Melbourne. She told Zainah she would see her in Indonesia. Zainah then told Elmiah that actually she had a big problem and was  thinking to extend her visa to stay in Australia. Elmiah asked why and Zainah said that her business owes lot of money to the bank, and she had a big problem in her family.   Elmiah was very mad at her and accused Zainah of taking advantage of her. Zainah replied that she wanted to see what happens with the man she was with.  Elmiah was angry and left.

   g.Elmiah left Australia before her visa expired.

   h.When she returned to Indonesia she resigned from her job and had nothing more to do with the company.

   i.Elmiah applied again to visit Australia. She and the review applicant’s children get along very well and Elmiah has been a significant part of their lives since their birth. She was present at their deliveries.  However Elmiah’s Visitor visa was cancelled by the Department because Zainah overstayed, and Elmiah’s request to visit was rejected. The review applicant and Elmiah appealed but their appeal was rejected.

   j.The review applicant has no other family members in Australia. When she is sick or the children are not well it is difficult for her because her husband has to work.  Her eldest son has asthma and was hospitalised recently with a collapsed lung.  She had to stay at the hospital with her son and her husband had to work so there was no one to help with her other children.  Her mother in Indonesia is elderly and her other siblings there work. Elmiah is the only one who has some flexibility to travel and support the review applicant when she needs.

   k.The review applicant has no idea where Zainah now is.  She is not related to Zainah. When she wrote that she sponsored Zainah’s visit to Australia she meant that she just gave Zainah an invitation letter. She did not fill in any form.  Usually her husband sponsors their relatives’ visa applications.  He asked the review applicant if she was sure she should provide a letter to Zainah given she did not know her well and the review applicant told him she had a positive feeling about Zainah and it would be alright. She now regrets this and will never again sponsor or help anyone else, except for close family, to visit Australia.

   l.Elmiah is now working at a midwifery school. She is the head of admin there.

   m.The review applicant would like Elmiah to visit for one month. Elmiah would not be able to stay longer because she needs to return to her work.  The review applicant misses her very much.

   n.Elmiah lives with her husband in Jambi, Indonesia. 

   o.Their father has passed away and their mother is elderly.  Their mother lives with another sister who is busy with her work as a doctor. So Elmiah is the one who mostly looks after their mother. She visits their mother every day and she is the one their mother feels most comfortable with. Their mother visited Australia in the past and she came with Elmiah then.

   p.Elmiah has never broken any rules in Australia.  She will never break any rules in Australia.

   q.The review applicant would like to sponsor her mother and other siblings to visit her in Australia in the future when they can.  She knows that if Elmiah comes to Australia and breaches any visa condition or overstays it will be very difficult for her to sponsor her other family members to visit her.

   r.The department sent a letter about cancelling Elmiah’s visitor visa, to her former address at her sister-in-law’s home. She had notified the Department she had changed her address but they sent the letter to the old address. Her sister-in-law did not realise the letter was important so Elmiah was not aware of the visa cancellation until it was too late.  If they had read the letter when it arrived they would have followed up and responded to the department.

   s.Elmiah does not have any religious or political problems in Indonesia. There is no one who wants to harm her there.

9. The following is a summary of the information provided by Mr Hefky Karaman in the hearing:

   a.He has previously sponsored relatives to visit him in Australia. He sponsored his mother a few times.  As far as he is aware no one he has sponsored has breached any visa conditions or overstayed in Australia.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting her sister and sister’s family in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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. According to the Department records the visa applicant has travelled to Australia four times on a Visitor visa, and each time departed Australia before the expiry of her visa.  There is no indication that she breached any visa condition while in Australia.  The Tribunal gives these factors significant weight in the visa applicant’s favour.

14. 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.

15. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant and her husband while in Australia. The Tribunal accepts that the visa applicant has access to sufficient funds to support herself during a visit to Australia. There is no indication before the Tribunal that the visa applicant intends or needs to work while in Australia.  In these circumstances the Tribunal is satisfied she intends to comply with condition 8101.

16. There is no evidence or indication that the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

17. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

18. The review applicant provided an explanation about the visa applicant’s involvement in her former employer’s travel to Australia.  There is nothing before the Tribunal to contradict her evidence.  Her account was very detailed, coherent, measured and plausible.

19. The Tribunal has requested the visa applicant’s 2015 visa cancellation file from the Department but to date has received no response.  The Tribunal was able to locate a copy of a Visa Cancellation under s.128 of the Act of the visa applicant’s Subclass 600 visa, dated 28 September 2015. The decision record includes the following:

    Grounds for cancellation: S128 relying upon s116 (1) (g), Reg. 2.43(1) (j) _ non-genuine visitor.

    Evidence of grounds for cancellation: The visa holder applied for a tourist visa and travelled together with her colleague, Ms Zainah ….  Since that date, the visa status of Ms Zainah has changed significantly. The change in status of Ms Zainah, and the visa holder’s own travel history, do not match that of a genuine tourist to Australia.

    I therefore conclude that the visa holder either did not or no longer has the intention to visit Australia for the purpose of tourism only.

    PART C:    GROUNDS FOR CANCELLATION

    Assessment

    I am satisfied that:

    -      there is a ground for cancelling the visa under section 116 of the Act (subparagraph 128(a)(i) of the Act);

    -      it is appropriate to cancel in accordance with Subdivision F of the Act (subparagraph 128(a)(ii) of the Act); and

    -      Departmental records show that the visa holder is outside Australia (paragraph 128(b) of the Act).

    Subparagraph128(a)(i) of the Act  I am satisfied that there are grounds for cancellation of this visa under section 128 of the Act, relying on the s116(1)(g), reg 2.43(1)(j) because the visa holder would not be a genuine visitor to Australia.

    Subparagraph 128(a)(ii) of the Act   I am satisfied it is appropriate to cancel the visa in accordance with Subdivision F of the Act.

    The reasons I consider it appropriate to cancel without notice under section 128 are that the visa holder could seek to return to Australia if notified of cancellation processes being undertaken.

20. The Tribunal can discern no cogent reasoning in the decision record as to why the overstaying of the visa applicant’s former employee indicated that the visa applicant herself was not a genuine visitor. The visa applicant visited her sister in Australia at a time her sister was giving birth, remained two weeks, and then returned to Indonesia.  Such behaviour is quite consistent with a genuine visit.  The delegate referred to the visa applicant’s ‘travel history’ as also indicating she was not a genuine visitor.  Her prior travel history consisted of three visits between 2009 and 2011 of two months, one month, and three months.  There is nothing about this pattern that suggests they were not genuine visits.

21. The evidence before the Tribunal does not support a view that the visa applicant’s former employer overstaying in Australia means that the visa applicant is not a genuine visitor.  For the following reasons the Tribunal is satisfied that the visa applicant does have a genuine intention to stay temporarily in Australia for the purposes of a Visitor visa.

22. The Tribunal accepts that the visa applicant is a married woman from Kota Jambi in Indonesia. The Tribunal accepts the visa applicant’s husband, elderly mother, and other siblings also reside in Indonesia. The Tribunal considers that the presence of these close family members  represents significant incentive for the visa applicant to return to Indonesia after a short stay in Australia.

23. The Tribunal accepts that the visa applicant has stable and valued income from her work as head of administration in a midwifery school.  The Tribunal accepts that she would want to maintain and resume this work on return to Indonesia.

24. The Tribunal notes that other relatives of the applicants, including their mother, have  previously travelled to Australia. There is no indication they did not comply with their visa conditions while in Australia.

25. The Tribunal gives substantial weight to the good migration history of the visa applicant,  review applicant and other relatives in Australia. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to her family and relatives’ immigration compliance in Australia. 

26. The Tribunal notes the review applicant’s wish to sponsor other family members to visit Australia in the future.  The Tribunal considers this further motivation for her to ensure the visa applicant does not breach any of her visa conditions and that she departs Australia before the expiry of her visa. 

27. In sum, the information before the Tribunal supports a conclusion that the visa applicant wishes to come to Australia for a short visit to see and assist her sister here.

28. 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

29. 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.

    Melissa McAdam
    Member