APPURASA (Migration)

[2018] AATA 3137

APPURASA (Migration) [2018] AATA 3137 (4 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jeyaruban APPURASA

VISA APPLICANT:  Mrs Niranjani JEYARUBAN

CASE NUMBER:  1716923

DIBP REFERENCE(S):  N3354892

MEMBER:Linda Symons

DATE:4 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 04 June 2018 at 12:57pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Whether the applicant genuinely intends to stay in Australia temporarily – Where applicant has expressed an intention to live in Australia permanently – Where applicant has a partner visa application pending – Strong incentives to remain in Australia – Limited incentives to return to home country – Decision affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, Conditions 8101, 8201, 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 1 August 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 14 July 2017. 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 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he/she was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 3 August 2017, the review applicant applied to the Tribunal for a review of this decision.

5. The review applicant appeared before the Tribunal on 12 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

8. 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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her husband who is the review applicant. This is a purpose for which a visa in the Tourist stream may be granted.

10. 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. There is no evidence before the Tribunal to indicate that the visa applicant has travelled to Australia previously.  

11. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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.

12. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for her visit to Australia. The review applicant gave evidence that he is employed in a food processing factory as a machine operator and forklift driver. He stated that he also works as an Uber driver on a part time basis. He stated that his income is approximately $1,200.00 gross per week. When asked about his assets, he stated that he owns a car and has savings of approximately $3,000.00. He stated that he has an outstanding personal loan of $ 20,000.00.

13. Following the hearing, the review applicant provided the Tribunal with documentary evidence of his personal loan, savings account with the Westpac Bank which showed a balance of $2,001.62 as at 27 February 2018, his Notice of Assessment from the Australian Taxation Office for the financial year ending 30 June 2017 and his Business Activity Statement for the quarter ending 31 December 2017. 

14. The review applicant gave evidence that he currently lives in a four-bedroom rented house with three friends. When asked where the visa applicant would live in Australia, he responded that he will rent a house for them in the Seven Hills area. He stated that he will pay for her travel to Australia and her living expenses in Australia. He stated that she is employed as a teacher in Sri Lanka and is not planning to work, study or undertake any training in Australia.

15. The visa applicant gave evidence that the review applicant will pay for her airfare and living expenses in Australia. She stated that she will live with him in Australia. She stated that she lives with her parents in Sri Lanka and has no assets other than some savings. She stated that she has no debts. When asked whether she is planning to work in Australia, she responded no. When asked whether she is planning to study or undertake any training in Australia, she responded that she has no idea about work or study.

16. The review applicant’s evidence that he will rent a house for himself and the visa applicant if she is granted a Visitor visa raises concerns for the Tribunal. The Tribunal notes that he is not in a secure financial position as he has an outstanding personal loan of $20,000.00 and the costs associated with instructing his migration agent and processing his application for Australian citizenship and the visa applicant’s application for a Partner visa. In these circumstances, it is not feasible that he would rent a house for himself and the visa applicant if she only intends coming to Australia for 3 months on a Visitor visa and this raises issues in relation to her intentions if granted the Visitor visa.  

17. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of her proposed stay in Australia. In her visa application, the visa applicant applied for a visa for 4 months from 1 August 2017 to 25 November 2017. When the Tribunal asked the review applicant how long the visa applicant wants to visit Australia for, he responded that it is up to the Department how long they will let her stay. When asked whether she would stay here for a year if granted a visa for a year, he answered “yes she can”.

18. The Tribunal asked the review applicant why the visa applicant did not apply for a visa for a year in that case. He responded that he thought she could only get a visa for a short period of time. When asked how she could take a year off from her job as a teacher, he responded that she had worked there for a long time and can take “long term leave” to come to Australia. The Tribunal discussed with him the letter from the Principal of the BD/Spring Valley Tamil Maha Didyala indicating that he/she had approved the visa applicant having 3 months leave. He stated that she applied for a Visitor visa for 3 months so she applied for leave for 3 months.

19. When the Tribunal noted that her visa application was for 4 months leave (from the beginning of August 2017 to the end of November 2017), the review applicant responded that there may have been a mistake. When asked what the visa applicant plans to do during her visit to Australia, he responded that she wants to visit places and get familiar with the lifestyle. His migration agent submitted that he completed the application for a Visitor visa and made a mistake. He stated that the end date should have been October instead of November 2017. The Tribunal accepts that this was a mistake on the part of his migration agent and places no weight on it. 

20. The visa applicant gave evidence that she wants to come to Australia for 3 months. She stated that her employer can only give her 3 months leave. When asked why she wants to come to Australia, she responded that she has visited her husband in India on a number of occasions but he can only get one month leave a year. She stated that if she comes to Australia he would be able to go to work and then spend time with her. She stated that she wants to stay in Australia for 3 months and see what life is like in Australia. When asked what she is planning to do during her visit to Australia, she responded that she wants to visit and see the country and if she gets a permanent visa she wants to live here. 

21. The review applicant’s evidence in relation to how long the visa applicant is able to take time off from her employment to visit him in Australia also raises concerns for the Tribunal. His evidence is that if the visa applicant is granted a Visitor visa for 12 months, she is able to stay here for 12 months and is able to get that length of time off from work. This is not consistent with the letter from her employer which indicates that she has only been approved 3 months leave. If the visa applicant is able to stay here for 12 months on a Visitor visa, it raises an issue for the Tribunal in relation to whether her employment offers an incentive for her to return to Sri Lanka before the end of her permitted stay in Australia.

22. The Tribunal has considered the visa applicant’s incentives to return to Sri Lanka at the end of her permitted stay in Australia. When asked what the visa applicant’s incentives are to return to Sri Lanka at the end of her holiday, the review applicant responded that she is working there as a school teacher. He stated that she applied for a Partner visa in about November 2013. He stated that the law changed in January 2014 and he needed to have Australian citizenship before he could sponsor her. He stated that he has applied for Australian citizenship and has passed the citizenship test. He stated that once he gets Australian citizenship, she will be able to get a Partner visa. He stated that she will definitely return to Sri Lanka.

23. The visa applicant gave evidence that she can only get 3 months leave from her work. She stated that she wants to return to Sri Lanka because she does not want to lose her job. She stated that she has applied for a Partner visa and does not want to jeopardise that. She stated that she will not stay for more than 3 months. The Tribunal asked her what would happen if she came here, changed her mind and then decided not to return. She responded that she will not change her mind. She stated that she does not want to lose her job. She stated that she is entitled to a pension in Sri Lanka. She stated that that is not how she thinks. She stated that before she immigrates to Australia she will do a handover of her job to the new teacher so that he/she will not have a problem because of her. She stated that she wants to see the review applicant and has depression over this.

24. The Tribunal has considered other relevant matters. [Information removed]. He stated that he got married to the visa applicant on 11 September 2013. He stated that he has travelled to India in 2013, 2014, 2015 and 2016 and met the visa applicant there. He stated that he can only get a month leave each year. He stated that he has not seen her since 2016. He stated that after he sponsored her for a Partner visa the law changed and he now needs to be an Australian citizen to sponsor her. He stated that he is very upset. He stated that he has applied for citizenship and passed the citizenship test in 2017. [Information removed].  

25. The review applicant’s migration agent made [submissions] that the visa applicant has a good permanent job as a school teacher in a Sri Lankan government Department. He stated that she is an educated woman and will return from her visit to Australia until she gets a Partner visa and is able to join the review applicant permanently. He stated that she has not been involved in politics in Sri Lanka and has no reason to claim asylum in Australia. He stated that she has no issue with the Sri Lankan authorities and relied on the Police Clearance Certificate. He stated that the review applicant has applied for Australian citizenship and there is no reason to refuse his application.

26. The Tribunal is not persuaded by the review applicant’s evidence or his migration agent’s submissions. [The] visa applicant’s ethnicity and gender raise concerns for the Tribunal in relation to whether she intends coming to Australia for the purpose of claiming asylum here.

27. The Tribunal raised as an issue with the review applicant its concerns in relation to the visa applicant’s intentions. The Tribunal noted that she has supplied for a Partner visa and that this indicates that she wishes to live in Australia permanently. The Tribunal noted that there are a number of hurdles she needs to overcome before her application can be processed such as him obtaining security clearance, obtaining Australian citizenship and then sponsoring her. The Tribunal noted that, even if these hurdles were overcome, there was no guarantee that she would be successful in her application for a Partner visa and this reduced the incentive for her to leave Australia before the end of her permitted stay.

28. The review applicant responded that he is not a criminal and expects to get a security clearance. [Information removed]. He stated that he is confident that he will get Australian citizenship. He stated that the visa applicant has undergone medical tests and has paid a bond. He stated that he contacted the embassy and was told that she would be granted the Partner visa. When the Tribunal noted that there was no guarantee of this, he agreed.

29. The Tribunal raised as an issue with the review applicant its concerns that the visa applicant had strong incentives to remain in Australia after the end of her permitted stay. He responded that he is sure that she will not overstay her visa as she does not wish to jeopardise her application for a Partner visa.

30. Having considered all the evidence, the Tribunal is not satisfied that the visa applicant’s intentions in coming to Australia are only for the purpose of visiting the review applicant. In view of the uncertainties surrounding her application for a Partner visa, the Tribunal is not convinced that it is a strong incentive for her to leave Australia before the end of her permitted stay. The Tribunal is also not satisfied that the presence of her parents in Sri Lanka and her employment in Sri Lanka provide sufficient incentive for her to return to Sri Lanka. The Tribunal is of the view that the incentives for her to remain in Australia after the end of her permitted stay outweigh the incentives for her to return to Sri Lanka.

31. 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

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

    Linda Symons
    Member