Donthi (Migration)

[2021] AATA 4987

Donthi (Migration) [2021] AATA 4987 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raja Shekar Donthi

Ms Monika Thota

CASE NUMBER:  1904340

DIBP REFERENCE(S):  BCC2017/2894378

MEMBER:Catherine Carney-Orsborn

DATE:7 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Regional Sponsored (Provisional) visa.

Statement made on 07 September 2021 at 9:32am

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – validity of sponsorship – relationship with sponsor – first cousin – different grandparents – claimed that mother was adopted – lack of documentation or records – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 489.225

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 15 February 2019 to refuse to grant the visa applicant a Skilled Regional Sponsored (Provisional) Subclass 489 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 12 August 2017. The delegate refused to grant the visa on the basis that did not meet primary criterion in cl 489.225(3)(d)(vii) of the Migration Regulations 1994 (Cth) (the Regulations).

3. The applicant appeared before the Tribunal on 3 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife who is a secondary applicant for the visa.

4. The applicant was represented in relation to the review by their registered migration agent.

5. In the response to hearing invitation the applicant had listed his cousin and sponsor as being a witness.  At hearing and listed in the hearing record it was stated that the representative and witness would not be attending.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the primary criterion in cl 489.225(3) of the Regulations.

8. Regulation 489.225(3) states:

   The Minister has accepted the sponsorship of the applicant by a person in the following circumstances:

   (a) the person has turned 18; and
   (b) the person is an Australian citizen, Australian permanent resident or eligible New Zealand citizen;
   (c) the person is usually resident in a designated area of Australia;
   (d) the person is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is an applicant for a Subclass 489 visa), as:

   (i) a parent; or
   (ii) a child or step-child; or
   (iii) a brother, sister, adoptive brother, adoptive sister, step-brother or step-sister; or
   (iv) an aunt, uncle, adoptive aunt, adoptive uncle, step-aunt or step-uncle;
   (v) a nephew, niece, adoptive nephew, adoptive niece, step-nephew or step-niece; or
   (vi) a grandparent; or
   (vii) a first cousin;

9. The first named applicant (the applicant) applied for the Skilled Regional Sponsored (Provisional) Subclass 489 visa under cl 485.225(3)(vii). The applicant’s sponsor is Mr SandeepKumar Bhimavarapu. The applicant claims that Mr Bhimavarapu is the applicant’s first cousin.

10. On 26 July 2018, the Department wrote to the applicant requesting evidence of sponsorship, evidence that the applicant’s sponsor was usually resident in a designated area of Australia (eg. lease agreements, utilities bills). The Department requested the applicant to provide evidence of the applicant’s birth certificate, sponsor’s birth certificate, applicant’s parents’ passports and birth certificates, and sponsor's parents passports and birth certificates.

11. The applicant provided to the Tribunal, a copy of their appointment for a COVID vaccination, the passport of B Sarangapani, an affidavit from his uncle Bhimavarapu Sarangapani stating that the applicant is his nephew and the applicant’s mother was adopted by his parents.  A family tree was provided which showed the applicant’s mother as the adopted daughter of the applicant’s grandparents dated 22 July 2021. Information in relation to his employment in Australia was provided. 

12. A letter to the Tribunal was provided dated 25 July 2021. In that letter he stated as follows.

    “The case officer mentioned that myself (Raja shekar Donthi) and my cousin (Sandeepkumar Bhimavarapu) is not my direct first cousin to get the sponsorship and also said that we have different grandparents, the reason behind this is because my mother (Donthi Laxmi) was been adopted by my cousins grandparents back in 1980’s, as it was done in 1980’s there wasn’t any proof of document about the adoption.

    In order to prove the relation I have requested my uncle (Sarangapani Bhimavarapu) father of Sandeep Bhimavarapu to provide an Affidavit of support to state the relation is legitimate. The supporting document has been submitted to Department of Immigration while lodging my 489 visa application.”

13. The letter went on to give his history in Australia and stated that he cannot return to India due to the current COVID outbreak.

14. No further evidence was provided.  No birth certificates for himself, the sponsor or their respective parents was provided. 

15. The applicants appeared before the Tribunal on 3 August 2021 via Microsoft teams.  A summary of their evidence given at hearing is as follows.

16. The Tribunal explained the purpose of the hearing and the issue it was considering.

17. The Tribunal discussed with the applicants that there was a non-disclosure certificate on the Department file.  The Tribunal discussed that a person had made an anonymous allegation that the applicant provided false documents in relation to education and his sponsor.

18. The Tribunal went through it with the applicant, with words to the effect, that there was scant detail and as the allegation was anonymous and no further information was provided it did not consider that it carried weight and would not take it into account.

19. The applicant then provided some general information to the Tribunal.  He was born in India in 1988.  He came to Australia in 2012 on a student visa.  He studied Information Systems but has not been able to find employment in that area of work.   He is no longer living in Dubbo and has moved to Sydney.

20. He is working in a supermarket in Sydney.  He stated that his cousin, SandeepKumar Bhimavarapu, who was his sponsor is now living in Nowra.

21. He stated that there was a problem with the Department as he and his sponsor have different grandparents.  He stated that as he was born in 1988 he has no birth certificates and that any documents are hard to find.

22. He said words to the effect that his mother was adopted, and he asked his cousin’s father to provide an affidavit of support.  He said words to the effect that he was unable to provide any official documents and that was why he supplied the affidavit.

23. The Tribunal asked how he managed to get a passport, he responded with words to the effect that he could not remember and then stated he used his secondary school certificate.

24. The Tribunal asked why his mother was adopted.  He responded that he did not know.  The Tribunal asked whether there was any relationship between his mother’s biological family and his biological family.  He responded that there was none.

25. The Tribunal asked for more information about his mother’s adoption.  He stated that he did not know. 

26. The Tribunal asked when she was adopted.  He responded that he did not know.

27. After further discussion he stated that his mother knew her biological family and that she was older when she was adopted.

28. The Tribunal asked for more detail.  He responded he did not know what age she was adopted. 

29. The Tribunal pointed out that for Hindus there is a system of adoption and official documentation and records.  He could not provide any persuasive reason why there was no official documents.

30. He responded again that there were no official documents and there was no biological connection between his mother and his family. 

31. The Tribunal then queried why he had earlier provided information to the Department which was set out in the Department’s decision that they had common great grandparents.

32. He responded that there were common great grandparents but not common grandparents.

33. The Tribunal then discussed areas of concern it had.  The Tribunal said that it was concerned that he had given inconsistent evidence in relation to whether there was any biological connection.  It was concerned about the lack of official documentation.

34. The applicant responded that he only had the affidavit he had provided from his uncle in India.

35. The applicant then indicated that he would like to withdraw his application.  The Tribunal explained that the hearing was being held so that evidence could be obtained to enable the Tribunal to make a decision.

36. The Tribunal indicated with words to the effect that it could not give him legal advice, however, would give him time to consider his options.  He responded that he did not want the review from the AAT withdrawn just the original application so he could lodge another application.  The Tribunal indicated it could not withdraw the original application.

37. The second named applicant gave evidence.  The Tribunal asked if she wanted to add anything to the evidence.  She responded that she had nothing much to say, she said that everything the first named applicant had said was true.

38. She stated that they cannot provide official documentation only what her uncle had provided.  The applicants indicated they had nothing further to add. 

39. The Tribunal gave until 10 August 2021 for the applicant to get advice.

40. The Tribunal indicated that it would carefully consider all the evidence and then make a decision which would be in writing.

41. After the hearing, the Tribunal provided in writing a letter setting out the issues that had been discussed at hearing in relation to the non-disclosure certificate, whether the applicant wished the Tribunal to proceed to make a decision on the evidence before it.  In the letter the Tribunal allowed extra time for the applicant to provide further evidence either orally or in writing to the Tribunal.

42. On 1 September 2021, the applicant provided a written statement from Sandeepkumar Bhimavarapu who claims he is a first cousin of the first named applicant.  He claims that the first named applicant’s mother is his aunt.  He states she was adopted and there are no adoption papers as it was before the 1980s. 

43. The issue for the Tribunal is whether there is a valid sponsorship in place.  The applicant asserts it is a valid sponsorship as the sponsor is his first cousin and he, therefore satisfies Regulation 489.225(3).

44. The Tribunal has carefully considered the evidence before it.  The Tribunal set out its concerns to the applicant at hearing. 

45. The applicant at hearing could give no adequate explanation of why he has significantly changed his evidence from, asserting to the Department in the family tree he provided to the Department and set out in their decision record, that he and the sponsor had common great-grandparents but not common grandparents.

46. The Tribunal indicated this was a significant change to the evidence he was now presenting to the Tribunal that his mother was adopted.

47. At hearing the applicant gave evidence that his mother was adopted.  He asserted at hearing that there was no biological connection between his mother and her adopted family.

48. His evidence changed in relation to the circumstances involving the adoption.  He at first said his mother had no knowledge of her biological family then changed to say she did know her biological family.

49. He could not provide any details which had been provided to him of his mother’s adoption or the circumstances of her adoption.  When pressed he stated she had been older when adopted.

50. The Tribunal would have expected he had some knowledge of his mother’s adoption and the circumstances surrounding it.  When asked about any adoption documents he insisted there was no documentation.  He insisted neither he nor his cousin had a birth certificate.  When put to him that in India there is a procedure for adoption for Hindus, he had no persuasive explanation as to why there was no documentation. 

51. When it was put to him that he has changed his evidence significantly in relation to having common great grandparents, he simply changed his evidence again to say there were common great grandparents.  He could not provide any explanation for such a crucial piece of evidence being changed when asked to respond to concerns.  He could not explain why he had earlier stated several times to the Tribunal there was no biological connection. 

52. He responded that all he had was his uncle’s affidavit.  After the hearing he provided a statement from Sandeepkumar Bhinavarapu in which he stated his mother was adopted and therefore the applicant and himself were first cousins. 

53. The Tribunal has considered all the evidence before it.  It considers that the affidavit and statement from his uncle and Sandeepkumar Bhinavarapu  alone is not enough to outweigh the other concerns with the lack of documentation and the applicant’s own inconsistent previous documents presented to the Department and his oral assertions evidence at hearing.   

54. The Tribunal accepts that Sandeepkumar Bhinavarapu is known to the applicant and would want to assist him to stay in Australia however the Tribunal is not satisfied that this evidence provided after the hearing is sufficient to over ride the earlier evidence provided by the applicant in his original application or his inconsistent oral evidence which indicates that they have no common grandparents and are therefore not first cousins.

55. On the evidence before it the Tribunal is not satisfied that the sponsor is the applicant’s first cousin.  The applicant therefore does not satisfy cl. 489.225(3).

56. The secondary applicant is reliant on the first named applicant satisfying the primary criteria.  As the Tribunal has found that he does not satisfy the criteria she is unable to satisfy the secondary criteria.

    DECISION

57. The Tribunal affirms the decision not to grant the applicant a Skilled Regional Sponsored (Provisional) visa.

    Catherine Carney-Orsborn

    Member

    DECISION

    Catherine Carney-Orsborn
    Member