HAXHNIKAJ (Migration)

[2018] AATA 1447

HAXHNIKAJ (Migration) [2018] AATA 1447 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss SHIRIN HAXHNIKAJ

VISA APPLICANTS:  Mr ABDYLBARI SHALQINI
Mrs SADET SHALQINI

CASE NUMBER:  1713707

DIBP REFERENCE(S):  BCC2017/1904375

MEMBER:Melissa McAdam

DATE:9 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 April 2018 at 9:14am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Relative of the applicant – Daughter-in-law – Close relative

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2 cls 600.211, 600.232

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 21 June 2017 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 29 May 2017. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The applicants provided the following information in the visa application:

   a.The visa applicants are husband and wife. They are citizens of Kosovo.

   b.They want  to come to Australia for three months to celebrate their son’s birthday in June 2017. They will stay with their daughter-in-law in Australia and not have to pay accommodation.

   c.The visa applicant, Mr Shalqini, works  as a clerical worker at a university. He submitted a confirmation letter from his employer. He has approximately 5,000 euros savings to pay for his trip to Australia.  The visa applicant, Mrs Shalqini, works as a sales worker for the Ipko company.

   d.The visa applicants’ daughter-in-law is the review applicant. She is in Australia and is an Australian citizen.  She is the sponsor for the visa applicants’ Visitor visa applications.

   e.The review applicant has worked at Estia Health in Greystanes as a nurse for more than two years.

4. The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.232 because the sponsor is the daughter-in-law of the visa applicants and did not meet the requirement of ‘relative’ of either applicant, as defined by Regulation 1.03.

5. The delegate noted that the visa applicant’s son held a temporary residence visa in Australia and that he could not meet the subclause 600.232 criteria as he was not a settled Australian permanent resident or citizen.

6. The review applicant appeared before the Tribunal on 4 April 2018 to give evidence and present arguments. She submitted the following documents to the Tribunal:

   a.Copies of pages of a current passport belonging to the visa applicant, Mr Abdylbari Shalqini. The pages include the biodata page; several entry and exit stamps to FYROM; and several entry and exit stamps to Istanbul, Turkey.

   b.Copies of pages of an expired passport belonging to the visa applicant, Mr Abdylbari Shalqini. The pages include the biodata page and a Schengen visa issued in 2006.

   c.Copies of pages of a current passport belonging to the visa applicant, Mrs Sadet Shalqini. The pages include the biodata page; several entry and exit stamps to FYROM; and several entry and exit stamps to Istanbul, Turkey.

   d.A copy of a Republic of Kosovo, Certificate of Registration for a business “D.Sh Net Phone” and  a Kosovo Business Registration Agency document listing the visa applicant Mr Abdylbari Shalqini as the owner of the business.

   e.A copy of a ’Fiscal Number Certificate’ in the name of the visa applicant Abdylbari Shalqini.

   f.A printout of account transactions for a bank account in the business name ‘Dsh Net Phone’ at NLB Bank, during the period 17.11.2016 to 17.05.2017.

   g.A printout of account transactions for a bank account in the business name ‘Net Phone Dsh’ at TEB Bank, during the period 01.11.2016 to 17.05.2017.

   h.A printout of account transactions for a bank account in the name the visa applicant, Mr Abdylbari Shalqini, at BPB Bank, during the period 01.10.2016 to 26.04.2017.

   i.A letter on ‘Universiteti Ukshin Hoti Prizren’ letterhead, dated 10 January 2017.

   j.A letter on ‘Universiteti Ukshin Hoti Prizren’ letterhead, dated 12 April 2017,  with an accompanying English translation stating that the visa applicant Mr Abdylbari Shalqini is employed full-time at the university in the position “High official of student services”; and that in 2017 he has 48 days of paid annual leave with full payment.

   k.A letter from the Prizren Municipality, dated 14 April 2017, stating that the visa applicant Mr Abdylbari Shalqini had income from property in 2017 totalling 19,968 Euros.

7. The review applicant submitted the following written statement to the Tribunal on 6 April 2018:

   “My purpose was to surprise my husband for his birthday and at the same time to complete the wish of a mother and father to see where there son and his bride live. The first time when they refused the tourist visa we were all very upset. We are very happy husband and wife and for this reason we would love my mother and father in law to see our happiness and success and for that reason we had applied again for the family stream visa at the time I did not know I wasn’t a relative as defined in the Migration Regulations of the sponsored family visa my purpose was only to try and complete my mother in laws wish. I had promised my mother in law I would try to do anything to make her wish come true and visit us in Australia. So then I also applied for a Tribunal hearing I now understand that I don’t relate as a relative under the Migration Regulations of the family stream visa. I had paid a lot of money just to complete my mother and father in laws wish to visit us anything from 2 weeks to even 1 month. I just wanted to make them happy my only wish would be if the Department of immigration had allowed them a tourist visa to come and visit us in Australia. We are both working and are able to support them during their stay in Australia I work as nurse and my husband works as a process worker we have our own place and are able to accommodate them as well as they both have their own funds.”
   
   

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal acknowledges that the applicants have adduced information to indicate that the visa applicants have substantial connections to their home country and a genuine intention to visit Australia temporarily, as required by clause 600.211 of Schedule 2 to the Regulations.

9. However they have applied for a Visitor visa in the Sponsored Family stream. The additional criteria to be satisfied in this stream are set out in Clause 600.23 of Schedule 2 to the Migration Regulations.

10. Clause 600.23 contains subclause 600.232 which in effect requires the visa applicants to be sponsored by a settled adult Australian citizen or permanent resident who is either a ‘relative’ of the applicant (cl.600.232(2)); or a member of a Parliament or a Territory Legislative Assembly, or a person who holds the office of mayor (cl.600.232(3)); or a government agency (cl.600.232(4)).

11. The visa applicants are being sponsored by their daughter-in-law. She is not a person described in cl.600.232(3) or cl.600.232(4).

12. A ‘relative’ is defined in Regulation 1.03 of the Migration Regulations to mean:

    -A ‘close relative’; or

    -A grandparent, grandchild, aunt, uncle, niece, nephew, step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece, step-nephew.

13. A ‘close relative’ is defined to mean:

    -A spouse, de facto partner, child, parent, brother, sister, step-child, step-brother, step-sister.

14. Daughter-in-law is not included in the definition of a ‘close relative’ or the applicable definition of a ‘relative’.

15. The Tribunal therefore finds that the visa applicants are not sponsored by a ‘relative’ as defined in the legislation. They therefore do not satisfy the criteria in clause 600.232.  The Tribunal therefore finds that the requirements of cl.600.232 are not met.

    DECISION

16. The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

    Melissa McAdam
    Member