Gyalay (Migration)

[2020] AATA 5713

Gyalay (Migration) [2020] AATA 5713 (20 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Erika Vaszilivna Gyalay

VISA APPLICANT:  Mr Volodimir Volodimirovics Bihun

CASE NUMBER:  1906227

HOME AFFAIRS REFERENCE:               BCC2018/5484160

MEMBER:Rosa Gagliardi

DATE:20 October 2020

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 21 October 2020 at 11:06am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – not a genuine temporary entrant – applicant’s lack of vocational direction – unstable work situation – unstable accommodation – lack of family support in the UK – COVID-19 situation in the UK – presence of mother in Australia – strong incentive to maintain residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211

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 23 January 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 6 December 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 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 (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 review applicant/sponsor appeared before the Tribunal by telephone on

   
   

   27 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in the United Kingdom, also over the phone.

5. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting his mother, the sponsor. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Background

10. The applicant is 23 years of age and a national of Hungary who is residing in the United Kingdom (UK).  The applicant is an only child.  The sponsor and the applicant are estranged from the applicant’s father and they do not know his whereabouts.  The sponsor gave evidence at hearing that the applicant has settled status in the UK which confers permanent residency on the applicant.  This arrangement was made after the Brexit negotiations regarding Europeans living in the UK.  The sponsor stated that there is no concern that the applicant will at any time be forced to return to Hungary.  His home is in the UK.  The sponsor argued at hearing that the applicant is eligible to be granted citizenship of the UK. 

11. The applicant moved with the sponsor to the UK from Hungary when he was aged 9.

12. The sponsor moved to Australia in 2016 under a subclass 457 Skilled visa but the applicant did not want to move to Australia and as he was 19 years of age, the sponsor was not in a position to compel him to migrate.  They decided he would visit her in Australia once a year, and she would visit him once a year, and they would thereby see each other twice a year.  Pre-COVID-19, this seemed an entirely plausible proposition.

13. The sponsor stated that when she first applied for the applicant to come to Australia under a Visitor visa subclass 600 visa, they had planned to undertake a road trip together as they had done previously in Europe and South Africa.  When the Visitor visa was refused, she saw a solicitor and he advised her to apply for a Sponsored Family visa (the visa under review).  They were shocked when the Department refused this visa even though the applicant only wanted to come for about four weeks. 

14. The sponsor spoke often about having a responsible position as a registered nurse and that she was traceable.  She would never jeopardise her good standing in the community.  The sponsor stated that the applicant never wanted to come to Australia in the first place.  They had spoken about him joining her in Australia, but it was not his dream to live here.  If the applicant wanted to reside permanently in Australia she would look into legal avenues for him to do so.   She would never do anything illegal.  It was not in her character.  The Tribunal reassured the sponsor that it did not have any issue with her integrity but her son may not share her values and it was his intention that the Tribunal was assessing.

15. The sponsor also stated that she was disappointed that the issue of security had not been raised with her at the time of application as she was prepared to pay.

16. The sponsor stated that the applicant was currently renting a room in a shared house in the UK and he covered the costs.  He had worked at a hotel but due to COVID-19 the hotel was converted to a hospital, and he could no longer be employed there.  It was convenient for the applicant as he had been able to live at the hotel.  Now the applicant is working at KFC. 

17. The sponsor stated that she had lived in the ACT until recently and was now living in Cairns and was working at a hospital there.  She had purchased a property with several bedrooms so she could easily accommodate the applicant.  The Tribunal noted that the applicant worked in a highly mobile industry; the hospitality industry.  The applicant could work in any entry level job in Australia.  The applicant might also find that in Australia the COVID-19 crisis was being handled well and that the social security system is also good.  It may be that the applicant may simply decide that he wanted to continue to stay in Australia; even legally.  The sponsor responded that she was not sneaky and had never done anything contrary to Australia’s or other countries’ immigration laws.  They were not planning any underhanded move to Australia.   

18. The Tribunal asked whether the applicant had ever considered pursuing studies and the sponsor stated that regrettably, he was not interested.  She had tried to encourage him but was unsuccessful in this regard.  He had seen his future in hospitality.  Initially he had trained as a Chef but it had proved too stressful and he decided that working as a kitchen aid was good enough.  She had hoped he would grow out of it.  

19. The sponsor also stated that the applicant did not like the heat.  He loved England and did not like going to any new places. 

20. The applicant initially stated he was working at KFC in a full-time position.  When the Tribunal put to him that in fact his mother had stated he was only working there casual hours, he responded that he was not getting many hours; only 30 hours a week.  In terms of his work experience it entailed mostly working in kitchens and helping out; “just doing simple stuff”.  He confirmed he was renting a room in a shared residence in the UK.  The Tribunal noted that if the applicant were to come to Australia he would most likely lose his accommodation and his work; his two mainstays there.  He stated that he would try to hang on to his room; but he was not sure.   He would find somewhere else.  In terms of his employment he stated that he would probably have to let go of it.  Asked if this meant that he would not have a job to return to in the UK, the applicant responded that he did not know. 

21. When the Tribunal put to him that the applicant might like being in Australia and might become disengaged from the Department to find work and become an unlawful non-citizen, he replied that he did not intend to do that.  He would probably take a month off work and return to it.  Asked if his job would be held by his employer on his return, he stated, yes, but it was all hypothetical.  It might take a bit of time to be able to take some time away from work.  Asked if the applicant had savings, he responded “Not really at the moment”.  He was trying to sort of save.  He had only started his job a month ago.  He was trying to get back to having some money.  He had been unemployed for a brief period and his mother had supported him. 

22. The Tribunal noted that the applicant could easily pick up work picking fruit, for example, working in northern Australia, but he responded that this did not appeal to him and he had no intention of living in Australia permanently.  He stated he had never been to Australia and he had never thought of living here.  He had discussed joining his mother in Australia and she had suggested it when she moved permanently, but he had not changed his stance on this matter. 

23. The Tribunal asked the applicant what it was that was keeping him in Britain.  He confirmed that he had no love interest there.  He just liked it.  He stated that nowhere else appealed; not at the moment anyway.  He was trying to be independent and he was not trying to move in with his mother to live off her. 

24. Asked if he had friends in the UK the applicant responded that he did; he knew people there.    Asked if the applicant was interested in further study, he responded it was not something he planned on doing.  He stated he just wanted to visit his mother as it had been a while since he had seen her; around 3 years. 

    cl.600.211(a)

25. 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)).

26. According to the sponsor, the applicant does not like travelling.  The Tribunal does not have a great deal of information on the applicant’s travel history but it would be safe to assume that he might have travelled within the UK.  It is also argued that the applicant and sponsor travelled together in Europe and South Africa undertaking road trips together. The Tribunal places some favourable weight on previous travel arrangements.  Without knowing much about the applicant’s personal circumstances at the time, however, such as whether he was working or a minor, it is difficult to extrapolate that on this occasion the applicant will abide by his visa conditions.

27. The applicant has never travelled to Australia, nonetheless, this matter is not definitive of the review and the Tribunal only places minimal adverse weight on the applicant’s lack of previous travel to Australia. 

    cl.600.211(b)

28. 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.

29. The Tribunal has taken into account the evidence submitted in support of the applicant’s claims that he genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted:

    ·Evidence of the sponsor’s savings demonstrating consistent transfers to the applicant.

    ·Letter from the sponsor dated 6 November 2018, setting out that she wanted her son to visit Australia for 6 months to spend time together over Christmas and to have a combined holiday in February 2019.  The sponsor states that she moved to Canberra in May 2016 and has visited her son twice for holidays.  The applicant’s mother was working as a registered nurse at the Calvary John James Hospital in Canberra as a perioperative scrub/scout and theatre educator.  She highlighted that she was renting a home with three bedrooms and could easily accommodate the applicant and could provide him with full financial assistance for the length of his visit.

    ·Evidence of the sponsor’s work at Calvary John James Hospital as a registered nurse, Level 2.

    ·Further letter by the sponsor to the Tribunal dated 11 February 2019, explaining that she left the then 19-year-old applicant in the UK where they had been permanent residents since 2007 as he did not want to move to Australia with her.  Her son wanted to visit to have a holiday in the form of a road trip but, “As he truthfully and honestly admitted that, his mother lived in Australia, his visa application got refused immediately on the grounds that his entry was dishonest”.  She had sought the help of a solicitor and he suggested the applicant apply for a Sponsored Family Visitor visa but she was shocked when it was again refused on the basis that the applicant had no family relations in the UK and only had a casual job.  The sponsor was concerned that she could not sponsor her son to visit her in Australia.  She also expressed concern that the applicant now had two visa refusals against his name and has been labelled a “dishonest person”.  The sponsor also details the resources she has expended in trying to sponsor her son to Australia without any success.  She has stated that she felt they were being treated like criminals and that if illegal activity was suspected of the parties then that should be made known to them.

    ·Further correspondence to the Tribunal dated 10 March 2020 from the sponsor, , arguing, among other things, that she felt traumatised at the accusations that she and her son were not honest.

30. The Tribunal expresses sympathy for the way the sponsor feels about the refusals for her son to visit Australia.  Of course, it is only natural that she should wish to be reunited with him on a regular basis.  Nonetheless, the sponsor’s view that she and her son are being treated like criminals, or that somehow the Department has some adverse material on the mother and son is misguided.  There is no such material that the Department or the Tribunal is relying on.  To be refused a visa does not mean that an applicant is dishonest or has criminal intentions.  Rather, the focus is on whether an applicant meets the criteria for the grant of a visa and in this case, whether the Tribunal is satisfied that the applicant genuinely intends to stay temporarily for the purpose for which the visa is granted.  In making such a decision, the Tribunal has regards to the applicant’s circumstances (which may well be beyond his control) in his home country, and any motivating factors that would motivate him to remain in Australia, even legally.

31. The Tribunal has no doubt that the sponsor is a professional person motivated by a sense of integrity.  The Tribunal also accepts that the sponsor would not undertake illegal conduct, particularly in terms of facilitating the applicant remaining in Australia without a visa.  This does not mean that the applicant might not, because of his circumstances in the UK, find he wants to change his status onshore lawfully once in Australia, however.  The visitor visa regime is not for the purposes, however, of enabling an applicant to come onshore before deciding where their future might lie.  The focus is not on the integrity or otherwise of the sponsor.  It is on the intention of the applicant, and unfortunately from the hearing, the Tribunal gained the impression that the applicant was unclear about many things.  The sponsor expressed a strong desire for the applicant to study – a matter she had been unsuccessful in persuading him to do.  She also wanted him to think about a career path but the applicant at 23 years of age appeared to be confined to kitchen hand opportunities.  While he originally may not have wanted to live here, some years later, the applicant might want to avail himself of a different direction.

32. At hearing the applicant appeared to be somewhat equivocal about what his future might hold in the UK.  Clearly, the COVID-19 pandemic has placed him in a difficult situation in terms of his work in that he is only working casual hours.  Nonetheless, it would appear that financially he is supported by the sponsor and it would be easier for him to be supported directly in Australia.  The sponsor owns her own home and Australia would represent a range of opportunities for the applicant in terms of studying and working, and he would have the emotional and physical support of his mother. 

33. Unfortunately, the applicant’s situation, in the view of the Tribunal, lends itself very much toward the applicant establishing a life in Australia, given his youth and willingness to work.  While the applicant may not have wanted to join his mother in Australia when he was younger, having seen the job market in the UK affected by COVID-19, and having few family members there (if any), the applicant might find the security and financial assistance his mother can provide directly in Australia highly enticing.

34. The sponsor at hearing and in submissions has spoken about her own solid financial position and character.  Nonetheless, the evidence pointing to the applicant having reasons to return to the UK are limited. 

35. At hearing the sponsor began to understand that the Tribunal was concerned that the applicant did not have “an anchor” in the UK.  The Tribunal asked whether the applicant had a parental or guardian figure in the UK and she responded that he did not.  The applicant is living in a shared house in a room.  He does not have any savings and the applicant stated that he was trying to save funds, but it is not clear whether the applicant will ever be able to rent a place of his own independently in the UK on his salary. 

36. Given the applicant is only working casual hours it is likely that were he to leave his current employ in the UK even for a month, that he would have to relinquish the job and would have to start a new job search in a post COVID-19 economy, whatever that might look like.  The applicant seemed to consider that he would be able to keep his job at KFC on return from his holiday in Australia, but the Tribunal has limited evidence that an iron clad guarantee has been made by his employer in this regard.

37. Furthermore, the applicant also conceded that he would probably lose the room he was renting if he departed for a time and on return to the UK would have no residence and that he might have to look for somewhere else.  Being in such as situation, coupled with being away from the strong support of a family member, being his mother, the sponsor, is an unattractive proposition, compared to the security he would have in Australia.

1. The applicant’s circumstances are indeed not something that are considered negative per se.  But for the purposes of this visa class, they represent a significant concern that the applicant will be motivated to change his status onshore given he has no significant other in the UK, and had few roots in the UK.

2. The Tribunal does not have any concern that the applicant would be trying to leave the UK because he does not have UK citizenship and is only a citizen of Hungary.  The Tribunal accepts that the applicant has residency status in the UK and that his status there is not in any way under threat.  Unfortunately, having undertaken the analysis it has, the Tribunal considers that the outcome would be similar if the applicant had been a UK citizen given his work situation, general financial position and close personal connections in the UK. 

   cl.600.211(c)

3. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The Tribunal understands that the sponsor will be disappointed with the outcome.  The Tribunal hopes that it does not reinforce the sponsor’s views that she and her son are viewed as being dishonest.  The test does not take into account matters of honesty.  The Tribunal can only either be satisfied that the applicant genuinely intends to stay temporarily in Australia, or it is not.  The Tribunal cannot allow its own personal wish for the applicant and sponsor to be reunited to overwhelm the decision-making process.  In this case, on this occasion, on the set of circumstances and evidence before it, the Tribunal is simply not satisfied.

4. This does not mean, however, that the applicant may never be able to come to Australia.  A different set of circumstances might yield a different result.  The applicant might also come to take some decisive action in terms of applying for a more permanent visa offshore given the visitor visa pathway has proved unsuccessful and the Tribunal would consider that given he is young there might be several routes he can take. 

5. The Tribunal has also considered the sponsor’s offer of a bond to demonstrate the applicant’s and her bona fides.  While the Tribunal places some weight in the applicant’s favour on this matter, when weighing the incentives for the applicant to remain in Australia, the Tribunal considers that they outweigh the incentives for the applicant to return to the United Kingdom, and therefore is not persuaded that in all the circumstances the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

6. 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

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

   Rosa Gagliardi
   Member