DARMO (Migration)

[2021] AATA 5417

DARMO (Migration) [2021] AATA 5417 (21 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ichaya DARMO

VISA APPLICANT:  Mr Sami DARMO

REPRESENTATIVE:  Mr AL MUSAWI BAKER (MARN: 0601647)

CASE NUMBER:  1933843

HOME AFFAIRS REFERENCE(S):          BCC2019/5212766

MEMBER:Rachel Da Costa

DATE:21 December 2021

PLACE OF DECISION:  Sydney

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 21 December 2021 at 9:39am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) –– Sponsored Family stream – visit his elderly mother – personal, business and property ties –– highly credible and truthful witness –the visa applicant genuinely intends to stay temporarily 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 21 November 2019 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 17 October 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 because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 28 November 2019, the review applicant applied to the Tribunal for a review of that decision.

5. The review applicant appeared before the Tribunal on 2 December 2021 to give evidence and present arguments via video using the Microsoft Teams platform. The Tribunal also received oral evidence from the visa applicant via video using the Microsoft Teams platform. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   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.

9. In the present case, the visa applicant is the elder brother of the review applicant. The visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

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 (cl 600.211(a)). There is no evidence before the Tribunal to indicate that the visa applicant has previously visited Australia.

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 (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.

12. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for his visit to Australia. The review applicant gave evidence that he has worked part-time as a hairdresser since 2018 and he is also his mother’s carer. His annual income, which includes government benefits he receives, is around $38,000. His wife is an apprentice hairdresser and prior to the Covid-19 pandemic she was earning around $380 per week but because of restrictions she has had to stop work. The review applicant owns two cars and has around $50,000 in savings. He has no debts.

13. The review applicant lives with his mother, his wife and their six children in a rented house. The house has 5 bedrooms. In addition to his wife and mother, the review applicant has four sisters and two brothers who live in Australia. His siblings are all Australian citizens. The visa applicant will reside with the review applicant and his family while he is in Australia because he wants to spend time with his mother. The review applicant has space to accommodate him. The review applicant stated that the visa applicant will pay for his own airfare and his living expenses while he is in Australia because he is well-off. The review applicant does not know how much money the visa applicant will bring with him to Australia but it will be enough to sustain himself while he is here.

14. The review applicant gave evidence that the visa applicant has his own business selling clothes in Trinidad and Tobago, which is where he lives. He has had this business for about 15 years. The review applicant stated that the Covid-19 pandemic meant the visa applicant’s business had to be closed for a while but it has reopened again and he is working. The visa applicant owns his own house and he is developing some apartments to sell, which are still under construction. The review applicant said the visa applicant also owns two cars. He does not know what other assets the visa applicant owns and said he does not feel comfortable asking him. The review applicant stated that the visa applicant does not have any debts and he is financially comfortable. The visa applicant is not planning to work in Australia or to engage in any study or training.

15. The visa applicant gave evidence that he is self-employed and owns a business in Trinidad and Tobago which sells clothes. He has owned this business for around ten years. He initially operated out of a shop but now his business is mobile and he also sells on the internet. The Covid-19 pandemic has reduced the income from his business by about 20%. In addition to the clothing business, he owns some good land on which he grows crops and can sell the produce if things get difficult. He owns his own house and is developing some apartments for rental which are not finished yet. He owns two vans and a truck for his business and a car for his wife. He has a comfortable amount of savings in the bank and no debts. While in Australia, the visa applicant will stay with the review applicant’s family. He explained that staying with family is expected in his culture. He will pay for all his own expenses, including his airfares and living expenses and will bring enough money with him to do that. He is not planning to work while he is in Australia or to study or do any training. He just wants to visit people and enjoy himself.

16. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, as well as other relevant matters, the Tribunal discussed the proposed length and purpose of the visa applicant’s visit to Australia and his personal circumstances. In his application for a Visitor visa, he stated that his proposed period of stay was up to three months from 24 December 2019 to 25 January 2020.

17. The review applicant gave evidence that the visa applicant is a Syrian citizen but he has lived in Trinidad and Tobago for at least 16 years. He has a wife and 15-year-old son there who are citizens of that country. The visa applicant is in the process of becoming a citizen of Trinidad and Tobago. The review applicant could not remember when he last saw the visa applicant but he estimated it was around 20 years ago. He gave evidence that the visa applicant talks to their mother almost every day and the review applicant talks to the visa applicant every week or so. The visa applicant wants to come to Australia to see his mother, who is getting old, before she passes away. He also wants to visit the rest of his family who live in Australia and then go back to Trinidad and Tobago. The review applicant stated that the visa applicant wants to stay for around one month, during which time the visa applicant’s wife will look after his business. The visa applicant can do that at the moment because business is still quite slow.  

18. The review applicant gave evidence that in addition to his siblings in Australia, he has a brother and sister who live in Canada. His sister in Canada has never visited Australia but his brother visited in 2017 and returned to Canada at the end of his stay. Movement records of the Department of Home Affairs confirm that this is correct and show that the review applicant’s brother also visited in 2010 and 2012, which is before the review applicant lived in Australia. The records show that after each visit the review applicant’s brother departed Australia in accordance with the conditions of his visa.

19. The visa applicant gave evidence that he wants to travel to Australia primarily to see his mother whom he has not seen for 20 years, since he left Syria in 2002. He wants to see his mother before she passes away and to see his other relatives. The visa applicant said he wants to visit Australia for one month, not more, and then return to Trinidad and Tobago because he is busy there. He said he likes living in the Caribbean, particularly because his wife and son are there but also because of the beaches and the weather. He is a permanent resident of Trinidad and Tobago and has applied for citizenship. The Tribunal asked the visa applicant how he could take time away from his business. He responded that his wife can run it while he is away. She does the ordering and other administration and she does not have another job. His son is at school and so he does not need too much looking-after.  

20. The Tribunal asked the review applicant about the visa applicant’s health. The review applicant gave evidence that the visa applicant is healthy and not on any medication. The Tribunal asked the review applicant whether the visa applicant had ever suffered any harm or discrimination in Trinidad and Tobago due to his ethnicity or religion. The review applicant said he had not. The Tribunal asked the review applicant whether the visa applicant had been affected by the security situation in Trinidad and Tobago. The review applicant said he had not. The Tribunal asked the review applicant how the economic situation in Trinidad and Tobago had affected the visa applicant. He responded that the whole world had been affected by Covid but the visa applicant had not mentioned anything.

21. The Tribunal asked the review applicant what incentive the visa applicant has to return to Trinidad and Tobago at the end of his stay. The review applicant said the visa applicant has his wife, his son, his properties, his money and his business. He has no incentive to stay in Australia. The Tribunal asked the review applicant what would happen if the visa applicant comes to Australia and changes his mind and decides not to return to Trinidad and Tobago. The review applicant said he never had the impression his brother would do that. He just wants to come to see his mother and then go back.

22. The visa applicant gave evidence that he is very healthy and is not on any medication. He gave evidence that his religion is Jehovah’s Witness and that he has not suffered any harm or discrimination in Trinidad and Tobago because of his ethnicity or religion. The Tribunal asked the visa applicant whether the security situation in Trinidad and Tobago had affected him. He said there are bad areas but they are not where he lives. The Tribunal asked the visa applicant how the economic situation in Trinidad and Tobago had affected him, particularly in light of the Covid-19 pandemic. He said that he has been affected like everyone else, but not too much.

23. The Tribunal asked the visa applicant what incentive he has to return to Trinidad and Tobago at the end of his visit to Australia. He responded that he has property, his home, his wife and child, his business and everything there. He cannot stay in Australia. He said that he wants to go back there after his visit. The Tribunal asked the visa applicant what would happen if he comes to Australia and changes his mind and decides not to return to Trinidad and Tobago. The visa applicant responded that he would lose everything. He said he has built himself up gradually over the years he has been in Trinidad and Tobago and if he did not go back he would lose his home, his property and everything.

24. The review applicant stated that he would be prepared to lodge a security bond in the order of $20,000 to $25,000 to ensure the visa applicant complies with the conditions of his Visitor visa.

25. Having considered all the evidence, the Tribunal finds the review applicant and the visa applicant to be credible witnesses and accepts their evidence. The Tribunal accepts that the visa applicant’s personal, business and property ties provide a strong incentive for him to return to Trinidad and Tobago at the end of his permitted stay in Australia. These ties include his wife and son, his long-term business interests, his other property interests including his apartment development, and his comfortable lifestyle. The Tribunal also notes that the visa applicant is in the process of becoming a citizen of Trinidad and Tobago. The Tribunal is satisfied that the visa applicant has worked hard to establish himself in Trinidad and Tobago over many years and is well-settled there and it is not his intention to come to Australia for the purpose of seeking permanent residence here.

26. The Tribunal accepts that it is the visa applicant’s intention to visit his elderly mother whom he has not seen for 20 years and to see his other family members, including the review applicant, who live in Australia. The Tribunal is satisfied that the visa applicant will not remain in Australia after the end of his permitted stay. The Tribunal is satisfied he will comply with his visa conditions.

27. 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

28. 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.

    Rachel Da Costa
    Member