Dorman (Migration)

[2021] AATA 2641

Dorman (Migration) [2021] AATA 2641 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ashley Ashrin Dorman

VISA APPLICANT:  Mr Virend Kumaran

CASE NUMBER:  1910273

HOME AFFAIRS REFERENCE:               CLF2019/19071

MEMBER:Rosa Gagliardi

DATE:9 June 2021

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 09 June 2021 at 3:43pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant genuinely intends to stay temporarily in Australia – failed to attend tribunal hearing – economic incentives to remain in Australia –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.221

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 15 February 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 22 January 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 Tourist 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. On 12 May 2021 the Tribunal wrote to the review applicant at an address provided by her to the Tribunal for the purposes of the review, to invite her to a hearing to have been held on

   
   

   9 June 2021 at 1.30pm, EST.  In the invitation the Tribunal highlighted that it had considered all the material before it, but it was not able to make a favourable decision on the basis of the information alone.

6. The invitation letter of 12 May 2021 also highlighted that if the review applicant was unable to attend the hearing (by phone) she should advise the Tribunal as soon as possible and that the date of the hearing would only be changed if the Tribunal were satisfied that the review applicant had a very good reason for being granted an adjournment.  The invitation also advised that if the review applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before it.

7. The review applicant did not respond to the hearing invitation and despite several attempts to call her, the Tribunal was not able to reach her over the phone on the scheduled date and time of the hearing.  Nor did the applicant provide any additional material to assist the Tribunal be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

8. The Tribunal acknowledges that the ability to proceed to decision is only a discretionary one in these circumstances, and that thought should be given to the use of such discretion fairly.  The Tribunal considers, however, that it is not for the Tribunal to make her case for her.  The review applicant was also reminded by SMS on two separate occasions (on 2 June 2021 and 9 June 2021) about the impending hearing.  When these reminders came back as “failed” the Tribunal then sent an additional reminder to the review applicant on another number provided to the Tribunal for the purposes of the review.  No request for postponement has been made – a matter the Tribunal would have looked upon favourably if good reasons for a postponement had been provided. 

9. The Tribunal is therefore satisfied that all reasonable steps were taken to enable the applicant to appear before the Tribunal.  The Tribunal therefore proceeds to decision on the basis of the material before it, including the Departmental decision that was made available to the Tribunal for the purposes of the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister, the sponsor, and her family and to holiday. These are purposes for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

    cl.600.211(a)

13. 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)).

14. The Tribunal notes that in the letter to the Department dated 4 December 2018, the review applicant wrote, among other things, that she was organising a family reunion because another brother from the United States was in Australia.  She wanted the visa applicant to come and take part in this gathering with the rest of the family as “this may be one of the last chances we may be able to gather together, as our family is spread all over the world and we’re all growing older”. 

15. The Tribunal has sighted on the Departmental file that the applicant, a Fijian national, has travelled to the United States of America as well as Canada.  These countries are similar to Australia and the Tribunal places favourable weight on the applicant’s presumed compliance with his visa conditions on these occasions.

    cl.600.211(b)

16. 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:

    ·            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.

17. The applicant is 54 years old and of working age.  There is a general paucity of information about the applicant’s circumstances and characteristics generally, and even more so about his current circumstances.  At hearing the Tribunal would have liked to ask the applicant several questions about his family composition in Fiji and how many dependents he might have, if any.  The Tribunal also has little information about the applicant’s assets which might tie him to Fiji.  At a hearing the Tribunal would have asked the applicant whether he could demonstrate that he had the capacity to save funds and how much over a year, for example.  These are critical matters that go to whether the applicant’s bonds to his home country are significant and would motivate him to return on expiry of his visa.

18. At the time of application, the applicant submitted a letter from his employer, dated
    8 January 2019, confirming the applicant was employed by the Nasese Bus Company Limited in Raiwai, and had been granted 3 weeks leave.  The role of the applicant is stated as “garage foreman” and the applicant’s employer states that the applicant is a permanent worker.  At a hearing the Tribunal would have asked the applicant precisely what his duties included and whether he was responsible for staff, for example.  Critically, the Tribunal would have also asked the applicant how long he had been employed at the bus company, about any previous work experience, and whether he had experienced any periods of unemployment. 

19. The applicant has submitted evidence of being a member of a provident fund, but the Tribunal would have liked to ask him about whether he would be entitled to a pension on retirement and indeed, when he would be in a position to retire.

20. As the Tribunal has many unanswered questions about the applicant’s everyday circumstances including his salary and savings, the Tribunal is not in a position to be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  Indeed, at a hearing the Tribunal would have liked to query the applicant whether currently he was still employed given the COVID-19 pandemic had affected employment around the world.

21. The Tribunal has sighted evidence of the review applicant’s savings which are considerable, and the Tribunal is in no doubt that she would be in a position to support her brother in Australia for a period.  The applicant in his application also wrote that the review applicant would pay for his air tickets, accommodation and food during his stay in Australia.  The Tribunal also accepts that the review applicant (sponsor) is in a position to pay for the daily necessities of the visa applicant were he to remain in Australia for a defined period.

22. Given the Tribunal has limited information before it about the applicant’s material circumstances in Fiji, however, the Tribunal has doubts that he has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.

    cl.600.211(c)

23. The Tribunal has also considered all other relevant matters (cl. 600.211(c)).  The Tribunal appreciates that the review applicant wishes to see her brother and that at the time of application, she was holding a family reunion.  At a hearing the Tribunal would have liked to inquire whether there was now any specific reason the applicant wanted to come to Australia, apart from generally wanting to see his sister.

24. While the Tribunal accepts that the COVID-19 pandemic is a world-wide phenomenon, reports out of Fiji indicate that the Delta strain is set to “explode” as the government struggles to control the outbreak.[1]  Given Australia’s numbers of the virus have remained relatively low, and given Australia is a wealthy country, the COVID-19 situation itself may be an incentive for the applicant to attempt to change his status while onshore.

    Conclusion

    [1] Stephen Dziedzic and Kelvin Anthony, “Cases linked to Delta strain explode in Fiji, as government struggles to control outbreak’, 8 June 2021, ABC News, Cases linked to Delta strain explode in Fiji, as government struggles to control outbreak - ABC News, accessed on 9 June 2021.

25. For the above reasons the Tribunal is not 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 not met.

    DECISION

26. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Rosa Gagliardi
    Member