GJERGJI (Migration)

[2021] AATA 4071

GJERGJI (Migration) [2021] AATA 4071 (29 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr ALBERT GJERGJI

VISA APPLICANT:  Mr GJERGJ GJERGJI

CASE NUMBER:  1924789

DIBP REFERENCE(S):  BCC2019/4100099

MEMBER:Stavros Georgiadis

DATE AND TIME OF

ORAL DECISION AND REASONS:         29 September 2021 at 1:04 pm (SA time)

DATE OF WRITTEN RECORD:                18 October 2021

PLACE OF DECISION:  Adelaide

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 18 October 2021 at 7:45pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant visits to other countries – registered farm business in Albania – language barrier – balance of family outside Australia – decision under review remitted    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 September 2019 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 29 September 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The visa applicant applied for the visa on 19 August 2019 with a decision made on 3 September 2019 to refuse the application.  At the time that the visa application was lodged, class FA contained one subclass, subclass 600 visitor with a number of different streams.  In this particular case, the applicant has applied for the visa, seeking to satisfy the primary criteria in the sponsored family stream.

4. The criteria for a subclass 600 visa are set out in part 600 of Schedule 2 to the Migration Regulations 1994. Relevantly to this case, they include clause 600.211 which requires a 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. The delegate refused to grant the visa in respect of the applicant on the basis that the visa applicant did not meet clause 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.

6. The review applicant is the son of the visa applicant and appeared before the tribunal on 29 September 2021 to give evidence and present arguments (in a combined hearing with related AAT casefile 1924784 by the applicant’s spouse and other visa applicant, Marije Gjergji).  The tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages, but predominantly was conducted in English as the review applicant’s command of English was satisfactory.

7. The review applicant was represented in relation to the review by his registered migration agent who was also present throughout the conduct of the proceedings.  For the following reasons, the tribunal has concluded that the matter in respect of Gjergj Gjergji should be remitted for reconsideration.

   Consideration of claims and evidence

8. The following provides the statement of reasons for the decision made in respect of the visa applicant.  The issue in this case is whether clause 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 a visa applicant has complied substantially with the conditions to which the last substantive visa or any subsequent bridging visa held by an applicant was subject, whether an 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 seeks the visa for purposes of visiting his son, Albert, who resides in South Australia.  This, that is, visiting a close relative, is a purpose for which a visa in the sponsored family stream maybe granted as provided for under clause 600.231.

10. The tribunal accepts the oral evidence provided that the visa applicants (in the related applications) Gjergj Gjergji and Marije Gjergji, are married and live in a joint household together in Beltoje in Skoder Province, Albania.  The tribunal accepts the oral evidence that the visa applicants live in the household and that they have children including two daughters, one of whom lives in Albania in the same region as the parents, in Skoder Province, and another daughter who lives in Italy.

11. The tribunal accepts the oral evidence provided by the review applicant that part of the applicants’ purpose of visiting their son, the review applicant, in Australia is to undertake travel throughout regions of South Australia as well as spending time with their son to better understanding his life and experience his life in Australia.

12. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the tribunal must consider whether a visa applicant has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa as provided for under clause 600.211(a).

13. In this particular case, the accepted oral evidence is that neither of the visa applicants have travelled to Australia previously and therefore, there is no evidence of either compliance or non-compliance by the applicant for the purposes of 600.211(a). However, the tribunal has also had regard to the accepted oral evidence that the visa applicants have travelled to see their daughter who resides in Italy, including on two occasions at least, and possibly up to three occasions, including 2014 and 2017 approximately and other occasions where each of the visa applicants travelled independently.  The tribunal accepts the oral evidence that on each of those occasions, the visa applicants spent time with their daughter in Italy for approximately one week each time and then returned to Albania at the end of their visit.  This adds some weight to the fact that the visa applicants have previously travelled outside of Albania and have been able to return to Albania at the end of the visit to countries outside of Albania including to Italy.  The tribunal accepts the oral evidence provided that there was non-compliance with prior travel by either of the visa applicants travelling outside of Albania on prior occasions.

14. The tribunal must also consider whether the visa applicant intends to comply with the conditions to which the subclass 600 visa would be subject as provided for under clause 600.211(b).  The conditions to which the visa applicant in the circumstances of this case would be subject are as follows: Condition 8101, must not work in Australia; Condition 8201, must not engage in study or training in Australia for more than three months; Condition 8503, not entitled to a substantive visa other than a protection visa while remaining in Australia; and condition 8531, must not remain in Australia after the end of the permitted stay.

15. The tribunal has taken into consideration the review applicant’s oral evidence that he would provide support in sponsoring his parents to visit Australia, noting the original application was for a period of up to three months between December 2019 to March 2020. However, the tribunal accepts that on this occasion, the visa applicants wish to travel to Australia for a period of approximately one month only as the tribunal accepts the review applicant’s evidence that there are obligations and responsibilities that his parents would be keen to return to back in Albania at the end of the proposed stay.  This includes work undertaken by the visa applicants in farming their land, noting that there is evidence of government or related documents certifying from the Institution of Social Insurances, Republic of Albania, that both visa applicants are self-employed in agriculture, including for periods leading up to the time of application and previously. 

16. The tribunal places weight on the evidence provided of insurance certificates covering (real) property in area of 12,500 square metres together with a dwelling house of approximately 150 square metres.  A document dated 18 June 2019, together with the certificates from the Institute of Social Insurances relating to self-employed agricultural work substantiations causes the tribunal to accept that the visa applicants undertake work as farmers to which they wish to return at the end of the proposed stay of up to one month in Australia.

17. In this regard, the tribunal accepts the review applicant’s oral evidence provided at the hearing that his parents work the farm in order to make a living and subsist from income they derive from the land.  That includes the growing of grapes, vines, olive trees, corn and wheat which they manage themselves and also at times call upon other (hired) workers to assist them in farming this land.  To this end, the tribunal accepts the oral evidence provided that during the proposed visit to Australia, there are other persons who will look after the land during the absence of the visa applicants in Australia.  That includes farm animals and domestic animals that they also care for.  This has been the case when they have travelled previously outside of Albania, for example, to visit their daughter in Italy on numerous occasions over recent years for short stays, as discussed earlier.

18. In respect of condition 8101, the tribunal has also had regard to the following factors that the review applicant has discussed with his parents, the visa applicants: the requirement to not undertake work in Australia, which they have indicated to him they have no desire and no intention to undertake.  The tribunal places weight on the review applicant’s evidence that his parents have no command of English.  It has also taken into consideration their age presently of between 62 and 63 years approximately.  The Tribunal places particular weight on the purpose of the applicants’ visit, that is, to spend time with their son and travelling in South Australia to visit the sights including wineries, the coast and wildlife parks as their son wishes to show them Australian fauna.

19. Having regard to these factors and also the fact that the applicant has had no specific training other than the farming undertaken for some 30 years according to the accepted oral evidence, the tribunal accepts that the visa applicant will not undertake work in Australia and therefore, will comply with condition 8101.

20. Regarding this factor, the tribunal has also taken into consideration the evidence of financial resource available to the review applicant from his work that he undertakes as a tiler in the construction industry.  He has set up a business since approximately 2015 which substantiates funds of some $88,460 as at 30 June 2019 in a Commonwealth Bank account for which he estimates the current balance is between $50,000 and $60,000.  This is a substantial amount of money available to provide support to his parents for accommodation, food, travel and related expenses for the proposed visit up to one month’s stay in Australia.  Aside from this, the tribunal accepts the review applicant’s oral evidence that his parents have independent means to facilitate the cost of travel to Australia and their return at the end of the proposed stay and accepts that from their agricultural pursuits in the oral evidence provided, of savings in the order of $30,000 or $40,000 equivalent US dollars, that are financial resources that they can draw upon for the purpose of their visit.

21. Turning now to condition 8201: This requires that the visa applicant must not engage in study or training in Australia for more than three months.  For similar reasons to the above, placing particular weight on the purpose of the visit to spend time with their son and to engage in travel throughout South Australia and spending time with their son (who will take time off work of approximately of up to one month for the proposed visit), the tribunal accepts that condition 8201 will also be complied with, noting in particular, that the proposed visit is for less than three months stay in any case.

22. Accordingly, the tribunal finds that condition 8201 will be complied with by the visa applicant and that he will not engage in study or training in Australia for more than three months.

23. In respect of condition 8503, not entitled to a substantive visa other than a protection visa while remaining in Australia, the tribunal has considered the following factors:  The tribunal accepts that on prior occasions of travel outside of Albania, the visa applicant has had no trouble returning to Albania at the end of that travel outside of Albania, including the aforementioned travel to Italy to visit that daughter. This has been on more than one occasion and up to three occasions in recent years as discussed earlier.  The tribunal accepts also that the review applicant himself has been able to travel back to Albania from Australia and has been able to enter that country without hindrance.  The Tribunal accepts from the evidence provided at the hearing that there is no reason for the visa applicant to fear any return to Albania at the end of their proposed stay or to seek protection or complimentary protection for any fear in returning to their home area at the end of the proposed stay.

24. It is evident from their prior travel and travel of other family members that there appears to be no reason for any difficulty in the visa applicant returning at the end of the proposed stay and taking these factors and considering them collectively, the tribunal accepts that visa condition 8503 will also be complied with by the visa applicant.

25. Turning finally to condition 8531: This requires that the visa applicant must not remain in Australia after the end of the permitted stay.  The tribunal considers that are there are numerous factors that act as incentives for the visa applicant to return to their home area in Albania at the end of the proposed stay when weighed against incentives to encourage him or to act as incentives to stay in Australia, noting firstly the oral evidence provided at the hearing that the review applicant is the only close relative that his parents would have in Australia and that he works and is engaged in his own business as a tiler.  Apart from the month the review applicant intends to take off, he will not be available to provide day to day attention to his parents after the end of the proposed stay.  On the other hand, there are many incentives that the tribunal accepts would act as strong incentives to encourage a return to the applicant’s home area in Albania at the end of the proposed stay.  This includes the accepted evidence that the visa applicant provides care and support for their daughter’s children, that is, the visa applicants’ grandchildren who are aged 11, 13 and a half and 16 years.  This includes helping to look after the children such as collecting them or taking them to school as their daughter works in other employment and is not available for that particular aspect of care.

26. Apart from looking after grandchildren and also having their own daughter living in the same area as their home area, the visa applicant also has other obligations and responsibilities to attend to including their agricultural pursuits in looking after the land that was earlier discussed.  This acts as a strong incentive to return to take care of the land and to continue to provide from the land in order to make a living and subsist from the land.

27. The visa applicant also has their own house on the land which, as evidenced by the insurance certificate earlier discussed, is a house of 150 square metres approximately in which the applicant lives together with his spouse.  The tribunal accepts that they are spouses, noting the marriage certificate that was provided in support of this, certifying the marriage on 30 November 1981 in the translated certificate dated 18 June 2019.

28. Further to this, the tribunal accepts the oral evidence that the visa applicant has little command of English, has a wide circle of friends and “lives comfortably”, in their home in Albania where the couple have numerous friends and a social group with which they engage.  The oral evidence that is accepted is that the applicant and his spouse know most of the other occupants of the village as described by the review applicant in the hearing.  They all know each other and spend time with each other and have a busy and committed social life in their home area in Albania.

29. Finally, the tribunal places weight on the fact that should any non-compliance with the visa conditions on this occasion occur, then it would make it much more difficult for the visa applicant for any proposed return travel to Australia in the future, noting their son is relatively young and has a fiancé with a (prospective marriage) application before the tribunal.

30. The tribunal also places weight on the notion that the review applicant would be keen and will ensure, according to his evidence, that his parents comply with all visa conditions so as to not prejudice his own visa application relating to his prospective marriage application before the Department.  All these factors the tribunal considers act as very strong incentives to ensure compliance with the condition 8531.

31. Finally, the tribunal also places weight on the declarations made of compliance with all visa conditions on the application form.  Of less weight is the review applicant’s evidence that he is prepared to pay a bond to better guarantee or secure his parents’ return (departure from Australia) at the end of the proposed stay.  The tribunal notes this and gives this some slight weight, although there’s no suggestion by the tribunal that a bond will be required as ultimately, this is a matter for the Department.

32. Considering all the above factors collectively, the tribunal is satisfied and considers that condition 8531 will be complied with and that the visa applicant will not remain in Australia after the end of the permitted stay.

33. Having regard to all the above information including all relevant matters, for the above reasons the tribunal is satisfied that the visa applicant, Mr Gjergj Gjergji, genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and finds that the requirements of clause 600.211 are met in respect of that visa applicant.

34. That concludes the decision and statement of reasons for the decision.

    DECISION

35. The Tribunal remits the application by visa applicant, Mr Gjergj Gjergji, for a Visitor (Class FA) visa for reconsideration, with a direction that that visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    *Clause 600.211 of Schedule 2 to the Regulations.

    Stavros Georgiadis
    Member