Dissanayaka Mudiyanselage (Migration)

[2020] AATA 5807

Dissanayaka Mudiyanselage (Migration) [2020] AATA 5807 (6 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Hirosha Sanjeewa Geethaka Bandara Dissanayaka Dissanayaka Mudiyanselage

VISA APPLICANT:  Mr Hareendra Dharsana Dissanayaka DISSANAYAKA MUDIYANSELAGE

CASE NUMBER:  1900545

HOME AFFAIRS REFERENCE(S):          BCC2018/5354885

MEMBER:Angela Cranston

DATE:6 October 2020

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 6 October 2020 at 15.57pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – strong employment history in home country – genuine intention to stay temporarily– compliant in the past – family and work commitment in home country –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 12 December 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2.    The Tribunal’s consideration of claims and evidence is at paragraph 12. The claims and evidence are directly below. 

3.    The visa applicant applied for the visa on 29 November 2018. 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.

4. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (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.

5.    In his application, the applicant stated that he was born in 1982, was never married, lived in Kadawatha (Colombo) Western Province and wanted to visit for up to 3 months. He stated his brother was in Australia and did not identify any relatives in Sri Lanka. He also stated that he was employed in [Company 1] as [Occupation 1].   

6.     The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 for the following reasons:

I have considered the evidence of your economic and financial circumstances. The evidence you have provided indicates that you are employed and have some savings however you have not provided any evidence of your income generated from this employment. Having considered the evidence I am not satisfied that your economic or financial circumstances are strong and that they represent significant incentive for you to return to Sri Lanka.

I note that you have limited immediate family ties in Sri Lanka and I am not satisfied that your other commitments in Sri Lanka are sufficiently strong to overcome my concerns in relation to your financial circumstances discussed above.

I have considered your previous overseas travel however when considered against your limited circumstances I am not satisfied that it provides a strong indication of compliance with visa conditions sufficient to outweigh my concerns around the genuine temporary nature of your proposed visit.

7.    The review applicant applied for review and provided the following letter dated 7 January 2019:

My brother applied for a visit to Australia for the first time by himself without any aid from experienced visa agent and he thought that evidence he provided was enough as this is a visitor visa for a short period. In fact he did not even send enough evidence of his income generated from his employment.

He works as a [Occupation 1] in [Company 1] (web link provided) which is a well reputed [Company] in Sri Lanka., earning gross salary of [amount] per month. I have attached his salary particulars and leave particulars with this application.

In visa refusal letter it is also mention that my brother has limited immediate family ties in Sri Lanka and they were not satisfied that his other commitments in Sri Lanka. But my sister, father and mother still live in Sri Lanka with my brother and I am the only one who lives away from Sri Lanka. My brother, mother and father live in the same house in Sri Lanka and my brother is caring for my parents as they live permanently in Sri Lanka. My brother has also inherited assets including lands, houses, commercial properties, vehicles and he is also responsible for maintaining them. My brother or anyone of my family have never breached any visa restrictions in the past and I could take the responsibility of his visa adherence if he was granted a visitor visa to Australia.

8.    The review applicant appeared before the Tribunal on 6 October 2020 to give evidence and present arguments. The review applicant stated that he had planned for the visa applicant and his mother to come to Australia. His mother had come to Australia twice and had returned. He also stated that his sister and parents were in Sri Lanka, that they were Buddhist Sinhalese, that the applicant was a 39 year old, well established person who could apply for skilled migration at any time but did not want to and who only wanted to visit Australia. When the Asian Development Bank forecast was put to the review applicant, he stated that the appilcant’s [employment] was secure.

9.    Movement records indicate the review applicant arrived in Australia on a Skilled – Regional Sponsored (subclass 475) visa on 30 March 2012 and last entered Australia on a Skilled Nominated (subclass 190) visa on 24 May 2013. The parties mother, Ms Hema Malani Lokubadu Jayasuriya Patabendige  arrived in Australia on a tourist visa on 19 February 2014 and departed on 30 April 2014. She again arrived on 20 November 2016 and departed on 11 January 2017. She again arrived on 2 May 2018 and departed on 10 May 2018. She again arrived on 2 July 2019 and departed on 9 July 2019.

Country Information

1. According to a Situational Update from the Department of Home Affairs – Sri Lanka Parliamentary elections effective from 28 August 2020:

The Asian Development Bank forecasts that the country’s economy will shrink by 6.1 per cent in 2020.   

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant, his brother. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

3. 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)), however because the visa applicant has never been to Australia, this consideration is not relevant.

4. 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.

5. Condition 8501 - adequate arrangements for health insurance, 8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia and 8558 - cannot stay more than 12 months in any 18 month period may also be imposed. In this case, the Tribunal considers condition 8503 and 8558 should be imposed.

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

2. In the application form, the applicant stated he was seeking a visa to stay for up to 3 months in order to visit the review applicant and his family. The review applicant has argued that the applicant only wants to come to Australia to visit and that he will return to Sri Lanka because at 38 he is well established in his employment and life and his parents and sister live there. He has also argued that if he wanted to migrate to Australia instead of visit, he would have applied for skilled migration, which is what the review applicant himself has done.

3. Having considered these circumstances, the Tribunal is satisfied that if the applicant was granted a visa, then he will return to Sri Lanka. While the Tribunal is mindful that it is predicted that the economy will shrink by 6.1 per cent in 2020, the Tribunal is satisfied that the applicant’s employment is relatively stable, most of his family is in Sri Lanka and there is nothing in the applicant’s family’s past that suggests that they will do anything other than what they say.   The Tribunal is therefore persuaded by the argument that if the applicant had wanted to leave Sri Lanka and migrate, then he would have applied for a skilled visa to come to Australia earlier. The Tribunal is also mindful that the review applicant understands that the impact of any non-compliance with the applicant's visa conditions would potentially jeopardise any future visits by the review applicant's family.

4. 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

1. 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.

Angela Cranston
Member