Bisahu (Migration)

[2023] AATA 2093

Bisahu (Migration) [2023] AATA 2093 (30 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Benjamin Gino Bisahu

REPRESENTATIVE:  Mr Fabrice Vincent Couronne (MARN: 1792547)

CASE NUMBER:  2218832

HOME AFFAIRS REFERENCE(S):          BCC2020/891692

MEMBER:Christine Cody

DATE:30 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 30 June 2023 at 3:16pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – in Australia visiting spouse when COVID travel restrictions started – partner visa in progress at time of application – relationship ceased and sponsorship withdrawn – compliance with conditions – intention to live in Australia permanently and bring daughter – international flights now available and visa would have ceased in any case – decision under review affirmed

LEGISLATION

Migration Act 1958 (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 Home Affairs on 30 November 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant is a 53-year-old male from Mauritius. He applied for the visa on 8 January 2021. 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 (Cth) (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 as the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The applicant was represented in relation to the review.

6. The applicant appeared before the Tribunal on 27 June 2023 to give evidence and present arguments. Midway through the hearing the applicant said that he had a sore mouth after dental treatment the day before and wanted to take some Panadol. The Tribunal checked he was able to continue with the hearing; he agreed, and there was a break. The Tribunal also received oral evidence from his sister-in-law, Marie Emma Justine Dedans. The representative did not attend, and the applicant told the Tribunal he wanted to proceed in his absence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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.

   Evidence before the Department

9. According to the application form and supporting documents:

   ·     The visa applicant was born in Port Louis, Mauritius. He is married. His reason for seeking a visitor visa were stated to be: “Coronavirus outbreak, flights suspended. Please also see statutory declarations”.

   ·     His proposed period of stay was up to 6 months, seeking to leave Australia on 22 June 2021.

   ·     He has family members in Mauritius who will not be accompanying him, namely his daughter from a previous relationship: Marie Tracia Sheyenne Bishau born in 2011 and his mother, 4 brothers and three sisters.

   ·     His contacts in Australia include his spouse: Marie Jenny Cindy Rayepa born 1973 who resides in Victoria, his sister, and his brother (and sister-in-law).

   ·     Current employment details: “I have worked as a carpenter and panel beater in Mauritius but am currently in Australia visiting my wife since January 2020 and do not have a work permit. I do not know how COVID-19 has affected my work prospects in Mauritius.”

   ·     Funding details: “My wife is employed. We also have a joint bank account and I have a bank account in Mauritius. Please see my statutory declaration and supporting documents.”

   ·     He had been convicted of offences in Mauritius, namely theft, robbery, break and enter, in 1998.

   ·     Visa History:

   o“My visitor visa was refused in June 2017 and was granted after AAT remitted the matter to the Department.”

   o“I came to Australia in January 2020 holding a [multiple entries] visitor visa granted 20/09/2019 …and when time came to leave Australia COVID-19 had broken out and I could not fly back to Mauritius. On 20 July 2020 I was granted a further visitor visa to remain in Australia until 22 January 2021”.

10. The applicant and his wife provided statements:

    Extract of applicant’s statutory declaration dated 7 January 2021

    1.I am married to Marie Jenny Cindy Rayepa who is an Australian citizen and I have applied for a partner visa TRN EGOK20AU5R. My application is currently being actively processed.

    2.I had every intention of leaving Australia before the expiry of my present visitor visa on 22 January 2021 however due to the outbreak of COD-I 9. I have not been able to fly back to Mauritius. I have been advised by Air Mauritius that all their flights have been suspended and they only accommodate repatriates. In addition, I suffer from a few medical conditions including Hypertension which would put me at a higher risk of contracting the virus.

    3.I have access to sufficient funds including some savings in Mauritius and approximately $6,500 in our joint Australian bank account. My wife has continued to work on a fulltime basis as an Aged Care Worker and is accommodating and supporting me.

    Extract of his wife’s statutory declaration dated 7 January 2021

    1.I married the applicant, Benjamin Gino Bisahu on 9 January 2017 and I sponsored him to migrate to Australia as my husband on 19 November 2018 file number BCC2018/5143333. The partner application is now being processed and we are in the course of waiting to book his medical examination.

    2.My husband has been visiting me frequently in the past year. Given the outbreak of COVID-19 he has no access to flights and even if he did, it would be too risky to be flying during such difficult times.

    3.I therefore would like to ask the Department of Home Affairs to extend my husband's stay until September by which time the outbreak is hopefully under control

    4.We live at the above address as husband and wife and I have been supporting my husband with food and accommodation. We have some savings and given that work in Aged Care my employment will not be suspended or terminated hence I will have funds available to support my husband

11. The applicant provided supporting documents including:

    ·     Travel/ visa documents including his sc600 visa grant notices 20/09/2019 and 20/07/2020; his passport; Travel agent Coco Travel's letter dated 05/01/2021 stating that Air Mauritius entered voluntary administration on 22 April 2020 as a result of COVID pandemic, except for repatriation flights.

    ·     Financial documents including a bank statement dated 06/01/2021 in joint names showing under $7000 balance, his wife's Payslip, 31/12/2020.

    ·     Identity/marriage documents including his National ID Card, birth certificate for himself and his wife, marriage Certificate issued on 16/01/2017, his wife’s Australian Citizenship Certificate.

    ·     The applicant’s AFP's National Police Certificate dated 19/03/2020 showing no disclosable outcomes.

12. On 13/01/2021 the applicant responded to a request about his character stating that he was pardoned on 27 April 2017 and enclosing the following documents

    ·The applicant’s signed statutory declaration dated 25/01/2021 explaining that he had been unintentionally involved in a crime and had been convicted and served time in prison and he was rehabilitated, and he had been pardoned[1].

    ·Mauritius Government's Pardon grant notice dated 27/04/2017 as a result of a petition lodged 15 August 2016.

    ·Certificate of Character dated 09/07/2020 stating that the applicant has not been convicted of a crime or misdemeanour in Mauritius.

    ·Character Reference of a Pastor in Mauritius stating that the applicant is trustworthy dated 05/02/2021.

    ·Character reference by Celestine Corentin, whose husband is a distant relative of the applicant’s wife dated 08/02/2021 confirming she knows him and he was convicted and imprisoned but then obtained a clearance and pardon

    ·Character reference of local doctor in Mauritius, Dr Khan, dated 02/02/2021 stating that he was convicted and imprisoned at the age of 25 years and since he has been coming to the clinic (time period not specified) he has shown good character and morals.

    [1] The Tribunal discussed at hearing that this information did not appear to have any relevance to the issue before it. The Tribunal accepted that he had been pardoned for previous offences. The applicant agreed that this was not relevant. The Tribunal did not place any weight on this.

    The delegate’s refusal

13. The delegate noted that the visitor visa program is designed to allow tourists an opportunity to travel to Australia temporarily for the purposes of genuine tourist activities. The delegate considered the applicant’s claims and:

    while I acknowledge the applicant may have been affected by the COVID-19 pandemic, and this may have impacted their ability to depart Australia in the past, COVID-19 no longer prevents the applicant from departing Australia given the increased availability of international flights and reopening of international borders.

    After considering the information provided, I am not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above. Therefore, I am not satisfied that the applicant meets the relevant criteria in clause 600.211 in Schedule 2 of the Migration Regulations.

14. There are no non-disclosure certificates on the Department File.

    Evidence before the Tribunal

15. The applicant provided an application for review, a copy of the notification and Department Decision Record, and a copy of the bio page of his passport.

16. On 9 June 2023, the applicant was invited to attend a hearing on 27 June 2023, and he was requested to provide any documents he sought to rely upon before the hearing. No documents were provided.

17. The applicant’s evidence included the following:

    ·     He was living with his wife and had a partner visa application pending until September 2022 when his wife withdrew her sponsorship, and the application was refused.

    ·     He lives with his sister who, with other family members, support him. 

    ·     He last arrived in Australia on 23 January 2020. He believed that he and his wife would have a future in Australia.

    ·     When asked why he was still here in Australia he said that it was his plan to bring his 12-year-old daughter (who lives with her mother and her mother’s boyfriend) out here to live with him to give her a better life. He wants for himself and his daughter to have a permanent life here. In his country, life is getting harder every day, all his friends tell him to stay in Australia because in Mauritius, it is getting worse, corruption, prices getting higher. He doesn’t like his wife’s boyfriend who hurt his daughter. He wants to find a solution to stay here permanently and bring his daughter here.

    ·     The Tribunal asked what steps he has taken to find a solution to stay in Australia permanently and his evidence was vague, referring to his agent not having done enough, but also stating that he is at home all the time, not doing anything, but he didn’t know what to do.   

    ·     The Tribunal checked that he proposes not to return. He agreed and said he wants to stay here permanently but he will comply with what is required. If he returns to Mauritius, he will have to restart things. He initially said that he couldn’t get a job and the Tribunal suggested this could not be correct; he agreed that he could get a job, perhaps in security, but not as a carpenter, because of his age. The Tribunal noted that he could get a job, contrary to his initial evidence; he said it would be hard.

    ·     The applicant said he missed his family in Mauritius, and so he had applied to return home for a visit in November 2022, he wanted to go back as his mother was turning 80 years of age and he wanted to see his daughter; he was not however given a bridging visa to travel. He confirmed it had been his intention to come back to Australia[2]. The Tribunal put to him that it appears that he considers himself permanently based in Australia, seeking just to visit Mauritius, instead of permanently residing in Mauritius and just wanting to visit Australia. He agreed that his intention was only to travel temporarily to Mauritius and then to return to Australia. 

    [2] This is consistent with the application for a bridging visa B to return to Mauritius for a visit and then to return to Australia on the Departmental file.

18. The witness Marie Emma Justine Dedans told the Tribunal:

    ·     She is on a work visa and has been here for 10 years. She is married to the applicant’s brother.

    ·     The Tribunal told the witness that the applicant gave evidence that he wants to stay here permanently and bring his daughter out to live with him here, which appears contrary to his application which is just for a visitor visa. It asked the witness if this is what she understood his intention to be and she said she understands he wants to stay here legally and he would need to arrange for another visa to stay here permanently.

    ·     She understands that if someone has a visitor visa they would eventually need to go back home and she thinks he would comply. 

    ·     He has a daughter and mother and 5 other siblings back home and there are reasons for him to go back home and they outweigh that he would not overstay.

    ·     She said however that she doesn’t know what he feels and what he is thinking. He will have to go back unless he can make other arrangements.

    The purpose of the visa

19. In the present case, the applicant says that he seeks the visa for the purposes of trying to find some solution so that he can remain in Australia permanently. The Tribunal notes that a visa in the Tourist stream may be granted for a number of reasons as set out below: cl 600.221 and cl 600.22[3].

    600.221  

    The applicant intends to visit Australia, or remain in Australia:

    (a)  to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or

    (b)  for any other purpose that is not related to business or medical treatment.

    [3] Clause 600.22 relates to a person who has held a student visa, he has not suggested that this has ever applied.

    Substantial compliance

20. 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)).

21. The applicant told the Tribunal that his last substantive visa was a tourist visa, the condition was that he was not allowed to work, and he did not. He has only ever been supported by his wife or his family. He said that there was a similar condition attached to his bridging visas, with which he complied.  The Tribunal has no evidence that this is not the case, and this was not suggested by the delegate. The Tribunal accepts that for the purposes of this decision that the applicant substantially complied with the conditions of his last substantive visa and his subsequent bridging visas.

    Intention to comply with conditions

22. 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

23. Further, conditions 8501 (requiring health insurance), 8503 (not entitled to a substantive visa, other than a protection visa, while remaining in Australia) or 8558 (limiting stay to a maximum of 12 months in an 18-month period) may be imposed.[4] 

    [4] cl 600.611.

24. The Tribunal was prepared to accept (as it did not have contrary evidence) that the applicant would not work or study, for the purpose of this decision. It is prepared to accept that he would maintain health insurance. It was put to the applicant that it was difficult to accept that he would comply with the condition such as staying no more than a limited period, given he has indicated that he wants to remain here permanently, not temporarily. He responded that he prays to God every day to find a solution to allow him to stay here (permanently) as he likes the people here. 

    Other relevant matters and further consideration of the matters above

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

26. The Tribunal has considered the applicant’s assertion, and that of the witness, that he would only stay here if he was legally allowed to do so. Prior to his most recent arrival, the applicant said that he has previously travelled to Australia as a visitor and has always complied with the conditions of his visas. While it has noted that there is no evidence that he has not previously complied with the conditions of a visa, this does not mean that this is his current intention.

27. The Tribunal noted the witness’s evidence, but it also noted that the witness said that she didn’t know what the applicant was thinking and feeling. The Tribunal said that it may not be able to place much weight on her evidence. The applicant did not disagree with this.

28. The Tribunal noted that when the applicant applied for the visa on 8 January 2021, having been here since 2020, he claimed he only wanted to stay 6 months until 22 June 2021. He did not leave at that time. The Tribunal put to him that he could have left the country, but he has not done so since his last arrival in 2020 (while it did acknowledge the COVID 19 pandemic). He then said that he was not allowed to leave the country. The Tribunal noted that, at least since his basis for permanent stay (his relationship) was over in September 2022, he could have left the country. The Tribunal put to him that he has already remained here for 9 months since he knew that his marriage was finished (September 2022) and he has had that time to find a permanent solution which is what he claims he wants to do, but he has not done so.

29. He said maybe his agent didn’t give him good advice[5], he can find a solution, he could go to school, find a course, he is desperate and he really wants to live here and he wants to do it legally. The Tribunal noted that he had mentioned studying and it asked what steps he had taken in this regard and he responded that maybe he is too old to study; he did not indicate that he had taken any steps in this regard. He said that no one told him the proper thing to do. He added that he is in a petanque club in Victoria and he has already represented Victoria in Adelaide and is also meant to come to Sydney. The Tribunal does not accept that this is his reason for seeking to stay in Australia, given it was only mentioned when the Tribunal put its concerns to him that he did not appear to be seeking to stay temporarily as a visitor. 

    [5] The Tribunal explained legal professional privilege and that he did not have to tell the Tribunal anything that a lawyer had told him; he said that he was referring to a migration agent, not a lawyer.

1. The Tribunal notes that the applicant has had a pending visitor visa application since his relationship broke down and his reason for staying permanently in Australia had ceased. His claimed purpose for being granted a visitor visa is however, to try and find a legal solution to stay permanently in Australia. The Tribunal does not accept that this is his claimed purpose, given he has had 9 months to search for a way to stay legally and permanently in Australia, but that he appears to have done nothing in this regard (either with or without migration/legal advice). 

2. At the end of the hearing the Tribunal put to the applicant that it may find that it is not satisfied that he has a genuine intention to stay temporarily in Australia for the purpose for which a short-term temporary visitor visa is granted. He responded that he understands this.

3. The Tribunal is not satisfied that if conditions 8503 or 8558 were imposed that he would comply with them. The Tribunal does not accept that that the applicant’s evidence supports that he has a genuine intention to stay temporarily for the purpose for which the visa is granted. It does not accept that the witness’s evidence overcomes the concerns arising from the applicant’s evidence.

4. The Tribunal finds that his purpose in seeking a visitor visa is to use the visitor visa pathway as a means of prolonging his stay in Australia, to delay any return to Mauritius, and to remain permanently in Australia without regard to any legal pathway. The Tribunal does not accept that this is a purpose for which a visitor visa is granted.  

5. 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

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

   Christine Cody
   Member