Buddhipala (Migration) - [2024] ARTA 850

BUDDHIPALA (MIGRATION) [2024] ARTA 850 (8 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Review Applicant:  Mrs D Chandrani Buddhipala
Visa Applicant:  Mrs Diminguwarige Lalani Mathiasz
Respondent:  Minister for Home Affairs
Tribunal Number:  2433986

Tribunal:Senior Member J Marquard
Place:Sydney
Date: 8 November 2024
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 08 November 2024 at 10:41am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – family memorial ceremony and related activities – property ownership in Sri Lanka – previous compliant visits to several countries – previous application for a permanent work visa – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The review applicant, Mrs Buddhipala has sought review of a decision made by a delegate of the Minister for Home Affairs on 17 September 2024 to refuse to grant the visa applicant, Mrs Mathiasz, a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The visa applicant, Mrs Mathiasz, is a citizen of Sri Lanka. The review applicant, Mrs Buddhipala, is her sponsor and her sister. Mrs Buddhipala is an Australian citizen.
Mrs Mathiasz applied for the visa on 11 September 2024.
The delegate of the Department of Home Affairs (the Department), as delegate of the Minister, refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
This is a review of that decision by the Administrative Review Tribunal (the Tribunal).
SUMMARY OF RELEVANT LAW
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.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Regulations.
Clause 600.211 of Schedule 2 to the Regulations 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.
EVIDENCE CONSIDERED IN THIS REVIEW
The Tribunal has taken into consideration the application for the visa and supporting documents, migration records for the applicants and new evidence to this Tribunal including a death certificate for the applicants’ mother, statutory declarations from the review applicant and the visa applicant’s husband, financial documents evidencing property ownership in Sri Lanka, travel itinerary and submissions.
The Tribunal has determined this matter without a hearing pursuant to s 106 (3) of the Administrative Review Tribunal Act 2024 (Cth). The Tribunal is satisfied that:
·the only parties to the proceeding are the review applicant and a non-participating party to the proceeding (the Minister for Home Affairs) (s 106(3)(a)); and
·the decision is wholly in favour of the applicant (s 106(3)(b)(ii)); and
·it appears to the Tribunal that the issues for determination in the proceeding can be ‘adequately determined in the absence of the parties to the proceeding’(s 106(3)(c)). ‘Adequate’ is defined in the Macquarie Dictionary as ‘equal to the requirement or occasion; fully sufficient, suitable, or fit’.[1] ‘Determined’ is defined as ‘decided, settled, resolved’.[2] Extensive new evidence was provided to the Tribunal by the applicant. The Minister is a non-participating party. On the evidence before it, the Tribunal was able to resolve or decide the matter sufficiently and suitably.
[1] Macquarie Dictionary online, < Word Search>.
[2] Macquarie Dictionary online, < Word Search>.
The evidence is referred to where relevant in the findings and reasons set out below.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The issue in this case is whether cl 600.211 of Schedule 2 to the Regulations 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.
In the present case, the visa applicant sought the visa for the purposes of attending her mother’s first year memorial ceremony and related activities on 25 October 2024 and her 94^th birthday celebration on 14 January 2025. The mother passed away on 25 October 2023 in Sydney. Visiting family is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.
Compliance with last substantive visa
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) of Schedule 2 to the Regulations).
The visa applicant has previously travelled to Australia on two occasions and complied with visa conditions. This is given significant weight in favour of a finding that she genuinely intends to stay temporarily for the purpose of visiting family.
Intention to comply with visa conditions
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) of Schedule 2 to the Regulations). 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.
The Tribunal is satisfied that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject, when taking into consideration the fact that she has always complied with visa conditions previously. This is a strong indication of her intention to comply with visa conditions. Furthermore, her sister, the review applicant is a lawyer and immigration agent in Australia. It would be damaging to her reputation were her sister, whom she has sponsored, to breach visa conditions. The Tribunal is satisfied that this is a significant incentive for the visa applicant to comply with visa conditions and given her migration history, the Tribunal is satisfied that she intends to comply with the conditions to which the Subclass 600 visa would be subject.
Other relevant matters
The Tribunal has also considered all other relevant matters (cl 600.211(c) of Schedule 2 to the Regulations).
Firstly, the Tribunal has considered the purpose and length of the visit. A travel itinerary was provided. The visa applicant applied to attend the first memorial of her mother’s death and other family events, including spending Christmas with her family. A death certificate for the applicants’ mother was provided as well as photographs of the funeral. Information was also provided about the importance of a first death anniversary for Buddhists, and the plans for Buddhist monks at the Buddhist Temple in Tallawong to perform religious ceremonies, chant sutras and offer prayers. The visa applicant had looked after her mother prior to her death and wished to attend the memorials. The Tribunal accepts that it is reasonable that she would wish to visit Australia for such a purpose, only intending to stay temporarily. She has asked for a visit of three months, which is commensurate with a short visit rather than a prolonged stay. Although the date of the memorial has now passed, she can still partake in other family activities on her visit.
Secondly, the Tribunal has considered the fact that on a previous occasion the visa applicant’s husband, Mr Mathiasz, applied for a permanent visa, which could be taken as an indicator that he and the visa applicant at that stage wished to remain in Australia permanently. The visa applicant’s husband, in a Statutory Declaration dated 9 September 2024 has explained the situation as follows. He said that he had more than 30 years’ experience in the hospitality industry. He was employed by a leading restaurant in Melbourne and granted a Subclass 457 Work visa on 29 September 2011. His wife, the visa applicant, and his mother-in-law accompanied him as dependents. The visa was valid until September 2015. Another restaurant then sponsored him for a further 457 Work visa however the nomination lodged was not approved. He said that the sponsor insisted on appealing to the former Administrative Appeals Tribunal and then to the Federal Court as the sponsor was convinced, he could win. However, Mr Mathiasz discovered that he could not meet permanent employer nomination due to his age, and he had some excellent opportunities in Sri Lanka, so he decided to return to Sri Lanka with the visa applicant. They postponed their departure until his wife’s mother-in-law passed away and then they discontinued the Federal Court proceedings and returned to Sri Lanka of their own accord. He said that they wanted to be able to return to Australia at a later stage to visit and complied with all their visa conditions.
He said that he had initially agreed to pay the Federal Circuit Court his court fees in instalments, which he had paid. He said that he has offered to pay a lump sum and is waiting to hear back from the Court.
The Tribunal accepts the explanation provided by Mr Mathiasz, noting that they always complied with Australian law and although they wished to stay in 2015 which was related to a job opportunity. Since then, circumstances have changed, in that the visa applicant’s mother passed away and he had other job opportunities in Sri Lanka. They no longer wish to reside in Australia permanently. Further, it is noted that the visa applicant and her husband have the ability to settle in the UK if they wished to leave Sri Lanka as he has an Irish passport (a copy of which was provided to the Tribunal).
Thirdly, the Tribunal has considered incentives for the visa applicant to return to Sri Lanka at the end of the trip to Australia. The visa applicant is married to an Irish citizen. A marriage certificate was provided to the Tribunal. Her husband will not accompany her to Australia. According to her husband, they have been married for 16 years and ‘are committed to a lifelong relationship’. She owns property in Sri Lanka, which is leased. A copy of the title deeds and lease agreements were provided to the Tribunal. She owns her house and has savings. Her husband receives a pension from the UK (documentary evidence was provided). Mr Mathiasz has said that they have a peaceful life with family, relatives and friends and they want to settle in Sri Lanka. He said that he has many business contacts in Sri Lanka in the hospitality industry. The visa applicant manages the Sri Lankan office of her sister’s immigration law office in Sri Lanka. She has been employed in this role since March 2024. The Tribunal accepts that there are significant incentives for her to return to Sri Lanka. A further incentive is that if she complies with the law, it is likely that she will be able to visit Australia on other occasions, a fact of which she will be well aware, given that she works for an immigration office.
Fourthly, evidence has been provided of travel by the visa applicant to many other countries such as the UK, Dubai, Japan, New Zealand, and Thailand. There is no evidence to suggest that she has not complied with visa conditions in these countries or attempted to over-stay in those countries.
Fifthly, the Tribunal has considered the character of the review applicant. She is a solicitor and barrister as well as a migration agent since 1995. She has undertaken that her sister would abide by visa conditions. It was submitted that she has always acted with integrity and the Tribunal has no reason to doubt this submission. The Tribunal accepts that it is in her interest to ensure compliance with the law given her professional status. Further she has sponsored other siblings several times, and all have complied with their visa conditions. The Tribunal notes that although the visa applicant applied for a permanent visa on a previous occasion, she left the country of her own accord, discontinuing Federal Court proceedings.
For the above reasons considered cumulatively 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 of Schedule 2 to the Regulations are met.
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.
Date(s) of hearing: No hearing held
Representative for the Applicant: Mrs D Chandrani Buddhipala