Dalpatadu (Migration)

[2022] AATA 1040

Dalpatadu (Migration) [2022] AATA 1040 (14 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Kosmapatabendige Shivasha Dalpatadu

VISA APPLICANT:  Mr Kosmapatabendige Kulantha Dalpatadu

REPRESENTATIVE:  Mr Senthil Rajan Sinnarajah (MARN: 0001074)

CASE NUMBER:  2003145

HOME AFFAIRS REFERENCE(S):          BCC2019/6483505

MEMBER:Mark Bishop

DATE:14 January 2022

PLACE OF DECISION:  Melbourne

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 14 January 2022 at 12:21pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visa) – Sponsored Family stream – visiting family – personal, business and property ties – not involved in Sri Lanka politics – the visa applicant genuinely intends to stay temporarily in Australia –little incentive for the applicant to remain in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 January 2020 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 applied for the visa on 5 December 2019. 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.

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.

5. In this review application the Review Applicant (RA) is Miss Kosmapatabendige Shivasha Dalpatadu. The Visa Applicant (VA) is Mr Kosmapatabendige Kulantha Dalpatadu. The representative is Mr Senthil Rajan Sinnarajah (MARN: 0001074). The (RA) appeared before the Tribunal on 13 January 2022 to give evidence and present arguments. The (VA) appeared before the Tribunal on 13 January 2022 to give evidence.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

9. 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)).

10. 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.

11. The delegate made the following findings:

    “Reasons for decision

12. In this case, I am not satisfied that clause 600.211 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:

    600.211

    The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

    (a) 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; and

    (b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

    (c) any other relevant matter.

13. In assessing whether or not the applicant genuinely intends to stay temporarily in Australia, I have taken into account information provided in the application, the applicant's immigration history and compliance with previous visas. I have also taken into consideration any supporting documents as well as the applicant's personal circumstances, commitments, and incentive to return to their country of residence.

    My decision is based upon the following factors

    ·I have noted that the applicant has declared the presence of his mother and one sister and her husband that will remain in Sri Lanka during his proposed visit to Australia. While I acknowledge that these family members may offer some inducement to return to his home country, I am not satisfied that their presence sufficiently demonstrates that the applicant intends a genuine temporary stay in Australia.

    ·In response to the employment status of the applicant on the Application for a Sponsored Family Visitor Visa, the applicant declared that he is “dealing with local share market ….”. I have noted that this employment is of a volatile and unpredictable nature, and therefore cannot be given the same weight as stable and ongoing employment. While I note that the applicant’s property and share interests may offer some incentive to return to Sri Lanka, I am not satisfied that the applicant’s employment ties offer sufficient incentive to induce the applicant to depart Australia within the validity of his visa.

    ·I have noted that the applicant has indicated that he owns property in Sri Lanka. In the absence of strong personal or employment ties to Sri Lanka, I place limited weight on this property ownership as incentive to return to Sri Lanka because property is an easily transferable asset that could potentially be sold or leased from within Australia. Therefore I have concerns that the applicant may not comply with his visa conditions.

    ·The applicant has not provided evidence of any previous travel or demonstrated previous compliance with immigration laws in countries outside of his own with which to use as supporting evidence that he will comply with his visa conditions and depart Australia within the validity of his visa.

    ·I acknowledge that the purpose of the applicant’s intended travel is to visit their family. While the applicant’s purpose of visit is noted, this in itself does not demonstrate that the applicant only intends a genuine temporary stay.

    ·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.

    Decision

    ·As clause 600.211 is not satisfied, I find the criteria for the grant of a Visitor (Sponsored Family) visa in the Sponsored Family stream are not satisfied. Therefore, I refuse the application by the applicant for a Visitor (Sponsored Family) visa in the Sponsored Family stream.”

14. The applicant provided a pre-hearing submission It addressed proof of income (dividend warrants with income detail), death certificate of mother, letter of invitation (Buddhist religion blessing of home ceremony, and a visa history of the RA inclusive of failed attempt to gain a Protection visa, and proposed sequential attempts in the future for various family members to visit Australia dated December 2019).

15. The applicant provided in addition a written submission that outlined the following:

    ·Family members not visiting Australia.

    ·Ownership of a property in Sri Lanka alleged to be “not easily transferrable” because of paperwork.

    ·Employment detail showing income of LKR 329,265 (in excess of AUD$30,000) during the year 2021.

    ·No previous overseas travel. Not involved in Sri Lanka politics.

    ·Desire to visit Australia to see sister and nephew.

    ·Another sister wishes to visit Australia after the return of the VA.

    ·The VA cannot find a trustworthy agent to look after his property because of corruption and the size of the property and attendant responsibilities.

16. In evidence the RA advised the Tribunal as follows:

    ·She lives in Sydney and holds a position as a senior finance manger in a global marketing company. She has been an Australian citizen since 2010. She owns her own home in Sydney plus has title to an investment property.

    ·She has lived in Australia since 1995 as the holder of various temporary visas.

    ·Both of her parents have passed. A sister lives in Sri Lanka whilst her brother-in-law lives and works in Dubai and returns home to Sri Lanka each year.

    ·A nephew lives with the RA in Sydney and is currently the holder of a 2 year graduate visa. He woks as an accountant and will apply for permanent residency in due course when eligible to apply.

    ·The VA lives in Kalutara, a town of a medium size and third largest town in Sri Lanka. In evidence the VA advised it was about 50 mile south of Colombo.

    ·In evidence the VA advised he owned a tea plantation of 27 acres that was very profitable and delivered a good income to him. He also invests heavily in the stock market and provided some written detail of dividend receipts. The VA advised he visited his tea planation every two months and was reliant on friends to drive him. This is because he is blind and the plantation is run by 3 workers and a caretaker. Because of his blindness he cannot work although his properties, and investments deliver a very comfortable income and lifestyle. The RA advised the Tribunal the VA is a wealthy man.

    ·The VA has not travelled outside Sri Lanka.

    ·The RA and VA have relatives living in Sri Lanka.

    ·The RA holds a senior position in Australian industry. She has mentored many people over the years. She is active in various charities in Sydney.

17. In evidence the VA advised the Tribunal as follows:

    ·He is not employed, invests in the stock market, is not a share trader, has significant liquid and property assets, is in receipt of a significant government pension.

    ·He lost his sight in 1988 and has not travelled outside Sri Lanka.

    ·His sister, the RA has offered to post a bond of $25,000.

    ·He is not involved in politics in Sri Lanka and has no need to apply for a protection visa in Australia as  he is an honourable man. He does not wish to live in Australia. He enjoys his lifestyle in Sri Lanka and has family and employee obligations of a serious nature in that country that need to be respected..

18. The Tribunal has given careful consideration to fall of the above. The applicant is a disabled person who with considerable wealth and standing in his home country of Sri Lanka. He has not departed Sri Lanka during his life and wishes to visit Australia, stay with family and re-build relations with family that have dissipated over time. He has considerable incentive to return to his home country (wealth, income, physical assets, supervision of employees and continuation of his current lifestyle). Many of his family live in Australia or naturally wish to visit Australia. Both the RA and the VA have gone out of their way to present evidence that any future family visits to Australia by other family members will be done sequentially and lawfully. There is little incentive for the applicant to remain in Australia. His large plantation requires regular oversight by trusted staff members and the applicant’s presence in Sri Lanka on a permanent basis is necessary for the value in the tea plantation to be maintained. This work cannot be delegated or transferred.

19. 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

20. 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.

    Mark Bishop
    Member