Govinna (Migration)

[2023] AATA 1171

Govinna (Migration) [2023] AATA 1171 (30 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Mauli Medhavie Govinna

VISA APPLICANT:  Dr Welatanthrige Indika Krishan Boteju

REPRESENTATIVE:  Mrs Thilinika Wijesinghe (MARN: 1463863)

CASE NUMBER:  2212216

HOME AFFAIRS REFERENCE(S):          BCC2022/2232578

MEMBER:Christine Cody

DATE:30 April 2023

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 30 April 2023 at 5:56pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to depart or remain – travel to attend religious wedding and for short holiday – spouse, young adult children, senior professional employment and property in home country – previous compliant travel and work in Australia and travel to other countries – country information – political and socio-economic instability – holds current visa for another country – effect of refusal on future applications – consistent and credible evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 600.211(a)

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 11 August 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review applicant is Dr Mauli Medhavie Govinna, a 28-year-old Australian citizen, who is the niece and sponsor of the visa applicant.

2. The visa applicant, Dr Welatanthrige Indika Krishan Boteju, applied for the visa on 17 June 2022. 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.

   The Department

4. According to the application forms, the visa applicant was born in Colombo, Western Province, Sri Lanka. He is 49 years of age, is married, and he currently resides in Malabe in Western Province. He sought a family visit for about 3 weeks; the purpose of his visit is the marriage registration of the review applicant on 1 September 2022.

5. He is currently employed as a medical doctor by Castle Street Hospital for Women, Ministry of Health, Sri Lanka. He started working there in April 2019.

6. The applicant proposes to travel alone. The members of his family unit remaining behind include his spouse and 2 adult children aged 18 and 20 years.  

7. He will be self-funded for the trip: he has an account with over 1 million LKR reserved for this purpose. Full accommodation and all other expenses will be provided by his family members in Australia, namely the review applicant and her mother (his sister) Welathanthrige Deepa Padmapanie Botheju Govinna (Mrs Govinna) who is a permanent resident of Australia.

8. He has previously visited Australia. On 5 April 2012 he was granted a UC-457 visa and he arrived in Australia on 25 April 2012. He departed Australia on 1 April 2014 before the expiry of his visa (5 April 2016) and has not returned since. He currently holds a tourist visa for United States of America, issued 25 February 2020, expiry date: 13th February 2025

9. The review applicant was born in Colombo but is now an Australian citizen. She works as a doctor for Western Health in Victoria. 

10. Supporting documents were provided including:

    ·identity documents for the visa applicant, including birth certificate, extract from National Identity Document, Sri Lankan drivers’ licence

    ·Travel documents for the visa applicant, including, stamped pages of the visa applicant’s current passport issued: 24 October 2017 (expiry: 24 October 2027); stamped pages of his expired passport (issued: 1 January 2008, expiry: 1 January 2018). These show that he had travelled to and from India, Singapore, Thailand, and Australia.

    ·Employment documents for the visa applicant, including Castle Street Hospital for Women Employment ID card issued 30 May 2019 showing his role as Consultant Resident Physician; his Sri Lanka Medical Council ID issued 10 May 2010; 2 letters from Dr K.D.P Wijesinghe, Director of Castle Street Hospital for Women both dated 15 June 2022 confirming that the visa applicant is an employee of the Ministry of Health and has been working in the hospital since April 2019, and providing confirmation of his permitted annual leave.

    ·Financial documents for the visa applicant including: a credit card; payslips from Castle Hospital for Women for November 2021, March 2022, April 2022, and Bank savings account printout (generated 5 July 2022).

    ·Financial/employment documents for the review applicant including Western Health Employment contract dated 13 January 2022, showing that she had a temporary employment from 7 February 2022 until 5 February 2023 as an endocrinology registrar, payslips from Western Health for period 9 May 2022 to 22 May 2022 and 23 May 2022 to 5 June 2022

    ·Birth certificate of Mrs Govinna.

    ·Identity/nationality documents for the review applicant including birth certificate, Australia Citizenship certificate dated 8 August 2012, Medicare card

    ·Invitation letter from the review applicant (undated). She states that the visa applicant is her mother’s closest sibling and it would be very special if he could attend for her wedding and a short holiday.

11. 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 a genuine visit only was intended. The delegate provided reasons including:

    Under policy when considering “any other relevant matter”, decision makers may take into account a wide range of considerations to determine whether an applicant genuinely intends a temporary stay in Australia. This may include, but is not limited to, the applicant’s employment, economic and family circumstances, their credibility, the claimed purpose and period of stay, and the applicant’s previous travel history…..

    In assessing these criteria I have taken into account the information provided by the applicant in their visa application form and the supporting documents. I find that the information provided is not sufficient to satisfy me of their genuine temporary stay intention, and the applicant has not demonstrated that they have sufficiently strong commitments in the country of residence that would be an incentive for them to return.

    More specifically, I have considered their economic circumstances and note that the applicant has not provided sufficiently strong evidence of their financial standing. As such, I do not consider that the applicant has strong economic incentives to return the country of residence at the end of their proposed stay in Australia.

    I note that the applicant has provided further evidence of financial support from their relatives. While I have taken the offer of support into consideration, I have attached less weight to this evidence as this is not in of itself sufficient evidence of a genuine visit. The onus is on the applicant themselves to provide evidence of their circumstances in the country of residence that would demonstrate that intention..In light of the above considerations, I am not satisfied that you genuinely intend to stay temporarily in Australia for the purpose you have stated, and therefore find that you do not satisfy Subclause 600.211 of the Migration Regulations 1994

12. There are no non-disclosure certificates on the Department File.

    The Tribunal

13. The review applicant provided an application for review form and a copy of the delegate’s decision record. 

14. The Tribunal received a number of documents before the hearing designed show that the visa applicant has strong financial standing and economic incentives to return to Sri Lanka at the end of the proposed stay in Australia:

    ·the visa applicant’s ownership of his residence in Colombo, Sri Lanka (supporting document/s: Certified copy of 2016 Deed of Transfer, and Survey of property

    ·the visa applicant’s ownership of his inherited property in Columbo (supporting document: 2003 Deed of Gift)

    ·the visa applicant’s ownership of his vehicle (supporting document: 2019 Certificate of Registration)

    ·Copies of documents previously provided to the Department

15. The review applicant also provided a copy of her Notice of Intended Marriage, for the event on 1 September 2022.

16. On 11 April 2023, the review applicant was invited to attend a hearing.  She thereafter appointed a registered migration agent (16 April 2023) who provided further documents on 21 April 2023:

17. The review applicant made a statutory declaration on 19 April 2023 in which she states:

    ·The visa applicant is her mother’s brother but while she was growing up, he was more than an uncle to her. He has been her mentor and her inspiration to enter the medical profession and they share a very close bond. It was her uncle who encouraged her to become a doctor and helped her to be who she is today. He is very close to them as a family and it is her desire that he present for her wedding day which is the most significant day of her life. According to their religious customs it is a maternal blood relative who helps the bride to climb the 'Poruwa' (Wedding Stage); there is only her uncle to perform this religious custom for her at my wedding and it means a lot for them to have him here to do this. Her mother’s other brother is sick and cannot travel.

    ·Her uncle is a Doctor in Sri Lanka practicing al the Castle Street Hospital for Women, Ministry of Health, and is married with two children who will remain in Sri Lanka during his two week visit here to Australia.She will be her uncle’s sponsor covering his accommodation and all his expenses during his two week stay in Australia.

    ·She assures and guarantee that her uncle will not in any way be a burden to the Australian Government during his stay, and he will will return back to his family and life in Sri Lanka.

18. Documents about the new wedding ceremony arrangements (postponed to December 2023 in the hope that the visa applicant can attend). The review applicant told the Tribunal that she and her husband had just had a small registry ceremony last year, but they are still planning the ceremony with about 140 guests, during which time the visa applicant will help with the Poruwa ceremony.

19. Documents relating to the review applicant’s finances including her current salary payslips as a Year 3 Medical Registrar, her bank account and loan details.

20. Documents relating to the visa applicant’s finances including valuations of his assets (significant value), and documents relating to his salary including letters from the director and accountant of the hospital dated 15 March 2023 showing the visa applicant’s salary (other research and information is provided showing that his salary is significantly in excess of average salaries in Sri Lanka, including average salaries of doctors).

21. Mrs Govinna's statutory declaration confirms the close relationships between the family members. She stated that the visa applicant is the only one who can assist the bride during the Poruwa ceremony (further general information was provided about this ceremony). She guarantees and assures that her brother will return to his family and life after spending 2 weeks with them.

22. Evidence that insurance has been organised for the trip, and a travel itinerary indicating a short, planned trip of about 1 week duration.

23. The agent made written submissions stating that applicant is a Medical Practitioner employed at the Castle Street Hospital on full-time basis. He also does private consultancy at another Hospital in Colombo. She provided discussion of the evidence relating to his income and other incomes generally, submitting that it is a high income. She notes that he has significant assets and funds but that because his relative is sponsoring him, he will only use his funds if required. The review applicant is a Medical Practitioner in Australia with significant regular income and significant savings. The families have been very close regardless of the distance or miles apart. The uncle has inspired and been a role model to his niece to be a medical practitioner. He supported her emotionally and shared his knowledge and experience as a General Practitioner. Their bonding and affection for each other is strong, as is the siblings’ bond.

24. The Tribunal invited the review applicant to attend a hearing via MS-Teams on 26 April 2023 to give evidence and present arguments. The review applicant, her mother and the visa applicant attended the hearing and gave evidence; her representative also attended. The Tribunal noted that no interpreter had been requested and stated that it was very important that it be informed immediately if an interpreter was needed. This did not occur.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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.

27. In the present case, the visa applicant seeks the visa for the purposes of a family visit, including with his Australian citizen niece. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

28. 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)).

29. The visa applicant’s last substantive visa was a subclass 457 visa. He stated in application that he complied with the conditions of his visa and departed during his authorised period of stay.

30. The review applicant gave evidence that he came over here for an employment opportunity, as a physician. The job went fine and he enjoyed his time here, but he returned to Sri Lanka as he lives there. There was no plan to migrate here.   His wife and 2 children came with him and they all returned together. She does not think he was granted any bridging visas during his stay, and as far as she is aware he had no issues during his stay here.

31. The visa applicant confirmed that he had been here with a subclass 457 visa. He has been a doctor in Sri Lanka for 20 years. When he came here, he was employed as a Principal House Officer at the level of Registrar at Mackay Base Hospital Queensland. His training in Sri Lanka required foreign exposure training for a minimum of 1 year. He got the job for 2 years so stayed for 2 years. Mackay Hospital said that he could extend, but he wanted to complete his training back in Sri Lanka so he did not seek to stay.  He said that he complied with visa conditions, he had no issues with the Department while here, and he never applied for a bridging visa. His family had accompanied him: they stayed in Brisbane while he worked in Mackay Hospital. They left together.

32. The Tribunal accepts the evidence that the visa applicant complied with his subclass 457 visa conditions, and that he did not have a bridging visa (the latter is confirmed through his movement records). The Tribunal gives this weight in favour of the application.

33. 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.

34. The Tribunal must also consider other relevant matters.

35. The review applicant said the plan is for the visa applicant to come for her wedding. He will arrive 2 days before the wedding and stay for a few days afterwards, about 7 days n total. He is planning leave from work so there would be no need for him to work or study. The visa applicant agreed, saying that he had not arranged to do any work with any medical practice, nor has he arranged to do any training with anyone in Australia. The Tribunal accepts that the visa applicant does not intend to breach conditions 8101 or 8201.

36. The Tribunal discussed with the 3 witnesses whether the visa applicant may seek to overstay or make another application such as a protection visa application. It referred to the long and difficult history of Sri Lanka, noting that the challenges continue to date, including the recent protests and numerous problems including the economic situation.

37. An extract of an article from the Diplomat[1] states:

    The deteriorating economic and political crisis in 2022 saw shortages of essential commodities such as food, medicine, cooking gas, and fuel, resulting in long queues for many who struggled to obtain essentials. Such queues also saw people collapse in the heat, with several reported deaths. This period also had power cuts of 12-13 hours a day, impacting all sectors, including different state sectors, hospitals, businesses, and households. 

    The combination of all these factors shook Sri Lanka to its core, and this in a country that had its share of past cycles of violence and devastation. Despite its past experiences – a near three-decade ethnic conflict, the devastating Easter Sunday attacks in 2019, and numerous cycles of ethno-religious violence – the events of 2022 exposed Sri Lanka’s murky governance system and ill preparedness to handle multiple cascading crises

    [1] >

    All three witnesses insisted that the visa applicant’s life is in Sri Lanka. The review applicant said that he is rooted in Sri Lanka, he has a well-established career as a senior consultant physician which is the highest level he can achieve. There have been better employment opportunities within Sri Lanka which he had rejected as he is attached to his current position and patients and does not want to abandon them. He has 2 children in Sri Lanka, one in their last year of school (undertaking the equivalent of Year 12) and the other is doing a medical science degree. She said that the country had already lived through much worse situations, yet he stayed, and if he was going to migrate she thinks he would have done this when the children were younger. She said that since he returned to Sri Lanka he had not again attempted to come to Australia; the only reason for his current application is because of her; she wants him at her wedding; it was not his idea.

1. She said that he is too busy to have any political involvement, he has not expressed any political views strongly and has not been anti-government. He has had no difficulty with his religion as he is Buddhist, the majority religion. He does not have any issues with anyone including harm, threats, violence, difficulties with his work or others. His wife, who works in a government administrative role, and their children also have no problems. She would know if anyone had such problems because of their close family ties. If he came here and said he or his family had problems in Sri Lanka, this would be an untruth.

2. The Tribunal asked whether she has had any other family members who have come to Australia on a visitor visa and then sought to stay and she said no. She came out here as a child with her parents: they came here in 2007 on skilled visas.

3. The visa applicant said that he only wants to come for his niece’s wedding. He is a doctor, well paid, devoted to his work, his patients need him. While he accepts there have been problems in Sri Lanka, including most recently economic turbulence, he and his family are not so much affected.  His property and employment and wife and children are in Sri Lanka and he will return. When asked whether he or his family have any problems or difficulties he said no. He said that his wife is also working and the children are in education and they can’t interrupt their lives here. He was concerned that he had been given a “black mark” by having this visa refused, which he objects to, and he noted that it may also affect him if, one day in the future, he does want to come to do further medical practice here.  

4. Mrs Govinna said that her brother does a great service in the country. He is second in charge of the hospital and he does private practice. He has pride in his medical work for the people of Sri Lanka.  If he came here and then claimed he or his family had problems in Sri Lanka, this would be an untruth.

5. In conclusion: The Tribunal found the witnesses to be credible and consistent. The Tribunal accepts that the visa applicant is an established Senior Consultant Physician attached to the Women’s Hospital, and that he also does some private work in another hospital. The delegate referred to a concern about the visa applicant’s financial position, however having received additional evidence both oral and documentary, the Tribunal does not have such concern. It accepts that the review applicant wants to support her uncle while he is here, and that in any event he has a significant salary and assets, and that he has strong personal incentives to return back to his country of residence after the proposed stay namely his wife and children, his medical practice, and his assets. It accepts that he considers his life to be in Sri Lanka.

6. The Tribunal notes that the visa applicant has a valid visa to the USA and if he had any difficulties or needed to escape Sri Lanka, he could have travelled there from the date of its issue on 25 February 2020. It also notes that he has previously had the opportunity to seek to remain in Australia, and indeed had a long-term visa to stay in Australia, and his wife and children were with him, but he did not stay; the whole family returned home well before the expiry of their visas. The Tribunal has accepted that there is no evidence that he did not comply with his visa conditions when he was previously in Australia. The Tribunal also accepts that the visa applicant and the review applicant have indicated a desire to respect and comply with the immigration laws.

7. The Tribunal finds that the visa applicant intends to comply with the conditions of a visitor visa. The Tribunal accepts the assurances by both applicants and the review applicant’s mother, that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

8. 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

9. 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.

   Christine Cody
   Member