Avdullari (Migration)

[2017] AATA 490

Avdullari (Migration) [2017] AATA 490 (23 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Arjan Avdullari

VISA APPLICANT:  Mr Islam Avdullari

CASE NUMBER:  1622455

DIBP REFERENCE(S):  BCC2016/3237887

MEMBER:Di Hubble

DATE:23 March 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 23 March 2017 at 11:55am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – cl 600.211 – Genuine temporary entrant – Applicant overstayed previous visit – Applied for permanent residence onshore and offshore – Lengthy queue for permanent applications – Desire to watch grandson play football – Connection to homeland – Income in Albania – Balance of family in Australia

LEGISLATION

Migration Act 1958, ss 65, 359AA

Migration Regulation 1994, 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 28 October 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 29 September 2016. 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 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). They include cl.600.211, which requires the visa applicant to satisfy the Minister that he 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 the visa applicant genuinely intends to visit Australia temporarily.

5. The review applicant, who is the visa applicant’s son, sought review of the delegate’s decision on 28 December 2016.  A copy of the delegate’s decision accompanied the review application.  The review applicant was represented in relation to the review by a registered migration agent. 

6. The review applicant appeared before the Tribunal on 22 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s nephews, Mr Oresti Naci and Mr Manuel Naci.

7. In response to the Tribunal’s questions, the review applicant said that the visa applicant:

   ·Is a 77 year old widow with 2 children, the review applicant and Ms Manushage Naci.  Both are Australian citizens who normally live in Australia.  Ms Naci has 2 sons, Oresti and Manuel Naci, who are her father’s only grandchildren;

   ·Had 3 siblings but 2 have passed away and his remaining immediate family in Albania is his 79 year old brother.  However, they have a big extended family in Albania;

   ·Receives the old age pension in Albania and earns some additional income from his farm land, which he rents to other families to grow crops;

   ·Owns his own home and has the equivalent of around $15,000 AUD in savings.  The review applicant, who works in a factory and earned $56,000 last financial year, said that he also has savings of $30,000 part of which can be used to meet his father’s expenses during his visit;

   ·Has been to Australia before and just wants to visit his daughter, her sons and the review applicant.  He only wants a short stay of a couple of months, given his age;

   • Has not recently travelled anywhere but the review applicant saw his father in 2015 when he travelled back to Albania.

8. The Tribunal noted the delegate’s decision indicates that in 2001 the visa applicant travelled to Australia on a Subclass 676 Tourist visa but he overstayed this visa.  The Tribunal also noted that in his statutory declaration, dated 15 September 2016, the review applicant said that whilst in Australia his parents applied for permanent residency.  However at the pre-approval stage, they decided to return home as they found living in Australia challenging due to a lack of language and social supports.  At the Tribunal hearing, the review applicant maintained that his parents had returned to Albania before the Department of Immigration made a decision on their applications for permanent residency.  He said that they had missed everything back in Albania and after they spoke about it as a family, his parents decided to go back to Albania.  Asked whether his parents were in Australia for long, the review applicant said that it was a while, but he was not sure exactly how long.

9. The Tribunal noted the delegate’s decision also indicates that the visa applicant subsequently applied offshore for a Subclass 103 Parent visa, which was refused on 29 July 2014.  The Tribunal further noted that although the review applicant had said in his statutory declaration that:

   My father has absolutely no intention of overstaying or applying for another visa as his views on living and dying in his own country are still as strong as they were many years ago,

   the delegate considered that the visa applicant’s immigration history indicated he did intend to reside permanently in Australia.   

10. Invited to comment, the review applicant acknowledged that they had a visa application for his father to come and stay, which had been in the queue for 10 years.  However, when they received notification 2 years ago that the Department was ready to consider the application, his father said that he didn’t want to live in Australia at his age because he has his home in a little town that he grew up in; he is comfortable; he has a coffee every day with his friends; his wife passed away there and all his relatives are buried there.  So they didn’t submit any evidence in support of the visa application, which was later refused.

11. Mr Oresti Naci told the Tribunal that his grandfather:

    ·Lived in Australia from approximately 2001 to 2005 and took him to school every day; he was loved by the whole community;

    ·Has done a lot more for his family than most grandparents; they have a long history and a close bond with him.  He goes back to Albania every 3 or 4 years but it is a long time not to see his grandfather, who he last saw a year ago.  It is also cheaper for 1 person to come here rather than for 5 people to go there;

    ·Waited in line for 15 years and had a chance to live in Australia but he refused because he did not want to come here after his wife died.  Australia is not suitable for people like him; his family works all day and can’t be there for him.  His way of life is in Albania where he has his house and land, and he receives a high pension;

    ·Has done nothing wrong.  He just wants to visit his family for a few months and spend some family time here before going back to Albania.  Mr Naci said that he is prepared to pay a security bond of about $5,000 in order to guarantee this.

12. Mr Manuel Naci told the Tribunal that his grandfather used to watch him and his brother play football when he was young; his grandfather was the first person to put a football in his hands.  When he went to Albania 3 years ago he showed his grandfather a video of him playing football, which made him cry; his grandfather said he wanted to see him play football.  It is his dream for his grandfather to watch him play football at the level that he is now at and then his grandfather can go back to Albania for the final time. 

13. The following information was then put to the review applicant, in accordance with the procedure under s.359AA of the Act, for his comment or response:

    The Department of Immigration’s information systems indicate that your father last travelled to Australia on 28 March 2001 on a Subclass 676 Tourist visa that was valid until 7 June 2001.  Your father then obtained another 3 different types of visitor visas, the last of which was valid until 18 June 2002.  Your father did not depart Australia prior to that visa ceasing and later applied, together with your mother, onshore for Subclass 804 Aged Parent visas on 10 October 2002.  You were the nominator for those visa applications.  After the visa applications were refused by the Department on 13 February 2003, your parents applied to the Migration Review Tribunal, which subsequently affirmed the visa refusals on 10 June 2003 because your parents were not old enough to meet the definition of Aged Parents.  On 4 August 2003 your father sought Ministerial Intervention in an attempt to remain permanently in Australia.  However, on 4 September 2003 the Ministerial Intervention Unit decided that your father’s case was inappropriate for the Minister to consider.  Your father then appealed to the Federal Court of Australia on 26 September 2003.  That application was dismissed on 21 June 2004 but your father did not ultimately depart Australia until 11 October 2005. 

14. The Tribunal explained that this information is relevant to the decision under review because it would, subject to the review applicant’s comments or response, leave the Tribunal unable to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted, in which case he would not meet cl.600.211 and the Tribunal would have no option other than to affirm the decision under review.  The Tribunal invited the review applicant to respond to or comment on the information, noting that he may request additional time before deciding whether he wished to respond.

15. The review applicant elected to respond immediately.  He conceded that everything the Tribunal had said was true.  When his parents came to Australia, the family wanted them to live here.  His parents were both young and they wanted to live with their children and grandchildren and have a life together in Australia.  They approached lawyers to see what they could do to help their parents stay permanently in Australia and they went through all the steps to try to enable this to happen.  However, that was 10 years ago and things change.  His father is older now and his mother has passed away.  His father has no intention whatsoever of staying in Australia.  The family all work Monday to Friday and no-one would be at home for his father, who doesn’t speak English.  He just wants to come and see his grandchildren for the last time.  Previously, they intended for his parents to stay in Australia but they didn’t do anything wrong; they just went step by step to see if they could succeed.  It didn’t succeed and so his parents went back to Albania.  But that doesn’t mean it will happen again; it won’t.  When he was last in Albania he went with his father to visit his mother’s grave and his father said, “that is where my place is”. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. The visa applicant seeks the visa for the purpose of a family visit.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

18. 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)).

19. The evidence before the Tribunal, as set out at paragraph 13, indicates that after arriving in Australia on a short-term visitor visa on 28 March 2001, the visa applicant obtained several other visitor visas, the last of which ceased on 18 June 2002.  However, he did not depart by that date but instead overstayed his visa and remained in Australia without a substantive visa.  The visa applicant also remained in Australia after his subsequent onshore application for a Subclass 804 Aged Parent visa, lodged on 10 October 2002, was finally determined on 21 June 2004 when his appeal to the Federal Court of Australia was dismissed.  Notwithstanding the finalisation of his appeal process, the visa applicant did not ultimately depart Australia until approximately 16 months later on 11 October 2005. 

20. On this evidence, the Tribunal is not satisfied that the visa applicant complied substantially with the conditions of the last substantive visa held by him, or any subsequent bridging visa.

21. 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.

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

23. The Tribunal acknowledges there are some factors that support the claim that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of a family visit, including that he:

    ·Has a 79 year old brother and a large extended family and several friends in Albania, where he lives in his own home in a town that he grew up in;

    ·Receives the old age pension in Albania and earns some additional income from his farm land, which he rents to other families to grow crops;

    ·Has the equivalent of around $15,000 AUD in savings;

    ·Does not speak English and his Australian family all work on a full-time basis.

24. However, the Tribunal ultimately could not be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted for the following reasons:

    • The visa applicant has a very significant history of non-compliance with previously granted visa conditions, as set out at paragraph 13, which occurred in the context of a concerted effort by him to obtain permanent residence, notwithstanding that he travelled to Australia on a visitor visa;

    ·All of the visa applicant’s immediate family, with the exception of his elderly brother, reside in Australia.

25. Although the review applicant saw his father when he travelled to Albania in 2015, the Tribunal accepts, nonetheless, that he would enjoy a visit from his father.  The Tribunal also acknowledges Mr Oresti Naci’s willingness to pay a $5,000 security bond in respect of his grandfather.  However, this does not overcome the Tribunal’s concerns as to the visa applicant’s intentions, given his migration history of having applied for an Aged Parent visa after travelling to Australia on a Tourist visa in 2001 and then having remained in Australia until October 2005 whilst pursuing various appeals in an attempt to remain here permanently.

26. Although the Tribunal carefully weighed the visa applicant’s individual circumstances, the Tribunal considers that the other factors outlined above cumulatively outweigh the factors that lend support to the notion that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of a family visit.  Accordingly, the Tribunal could not be satisfied that the visa applicant would not overstay his visa, thereby breaching condition 8531 (which the visa applicant’s visa would be subject to, as outlined above).

27. 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

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

    Di Hubble
    Member