Hiti Bandaralage (Migration)

[2022] AATA 4952

Hiti Bandaralage (Migration) [2022] AATA 4952 (22 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Jayeni Chathurika Amarathunga Hiti Bandaralage

VISA APPLICANT:  Mr Waruna Indika Amarathunga Hiti Bandaralage

CASE NUMBER:  2203273

HOME AFFAIRS REFERENCE(S):          BCC2021/2420037

MEMBER:K. Chapman

DATE:22 July 2022

PLACE OF DECISION:  Brisbane

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 22 July 2022 at 11:44am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – intention to comply with visa conditions – intellectual disability – healthy financial position – other relevant matters – prevailing political and economic situation in Sri Lanka – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 3 March 2022, 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, Mr Waruna Indika Amarathunga Hiti Bandaralage, applied for the visa on 15 December 2021. He is a national of Sri Lanka, now aged 34 years. 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 he 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, because he was assessed as not genuinely intending to stay temporarily in Australia. On 8 March 2022 the review applicant, Dr Jayeni Chathurika Amarathunga Hiti Bandaralage (the sister of the visa applicant), applied to the Tribunal for review of the visa refusal decision. She provided a copy of the delegate’s decision to the Tribunal with her review application. Additionally, the review applicant lodged with the Tribunal a written submission, photographs, financial information, medical records and confirmation of the visa applicant’s community activities. All material submitted has been duly considered by the Tribunal.

5. The review applicant appeared by telephone before the Tribunal on 19 July 2022 to give evidence and present arguments. She confirmed she was comfortable participating in the hearing by telephone. The review applicant delivered her evidence in a direct and engaging fashion. The Tribunal has no hesitation in assessing her to be a credible witness and accordingly her evidence is afforded high weight. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 he has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by him was subject; whether he intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

   Evidence before the Tribunal

8. The evidence provided to the Tribunal, in summary, establishes the following facts. The visa applicant is 34 years of age and resides in Sri Lanka with his mother. The visa applicant was born with an intellectual disability. He is unable to live alone and requires the care of his mother. The visa applicant’s father is deceased. He left a significant inheritance for his family. This includes several residential properties that derive income. The visa applicant and his mother are of substantial means in comparison to the general population in Sri Lanka. The visa applicant also has a significant sum held on deposit for him. Given his intellectual disability, his mother handles his financial affairs.

9. The visa applicant has employment as a bakery assistant in Sri Lanka. He is a regular member of a special needs dance group, including by way of participation in dramatic productions. The visa applicant and his mother have a very comfortable life in Sri Lanka. His mother plays an active role in managing the rental properties owned by the family. The visa applicant and his mother are little affected by the economic and political turmoil afflicting Sri Lanka, given their financial means and residential location. The visa applicant has several aunts, uncles and cousins residing in Sri Lanka, with whom he is close. The visa applicant and his mother are very happy with their present lifestyle in Sri Lanka.

10. The visa applicant has the review applicant (his sister), her husband and their two children as family members residing in Australia. The review applicant holds a full time academic position in Brisbane, focussed on agricultural science. The review applicant’s husband is a network engineer who works irregular and extended hours. Together, the review applicant and her husband are of comfortable financial means that would easily support a visit by the visa applicant. The review applicant has two children, aged one and ten years respectively.

11. The visa applicant has not travelled outside of Sri Lanka before. This is primarily due to his special needs. The proposed visit to Australia is for the visa applicant to accompany his mother and then assist the review applicant with her young children for up to one year. This will enable the review applicant to focus on her full time employment. The visa applicant’s mother has already been granted a Visitor visa, however she must travel with her son as he cannot be left on his own in Sri Lanka. Previously, the review applicant had the assistance of an aunt from Sri Lanka to assist with looking after her first child. The review applicant’s aunt returned to Sri Lanka without incident, in accordance with the terms of her Visitor visa.

12. The Tribunal discussed the prevailing political and economic situation in Sri Lanka, as depicted in open source country information, with the review applicant at hearing. The review applicant explained that given the visa applicant’s means, the need for her mother to return to Sri Lanka to manage the investment properties, the community activities of the visa applicant and their residential location, the present situation in Sri Lanka will not deter them from returning home. On balance, the Tribunal accepts this evidence.

    Analysis

13. The Tribunal records that it was impressed with the fashion in which the review applicant provided her evidence at hearing. She answered the Tribunal’s questions directly, with fulsome detail and in a manner consistent with the submitted documentary material. Accordingly, the Tribunal considers the review applicant to be a credible witness and her evidence is afforded high weight.

14. In the present case, the visa applicant seeks the visa for the purpose of visiting his sister (the review applicant) in Australia, accompanied by his mother. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

15. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)). The visa applicant has not held an Australian visa before. This is a matter that weighs neither in favour of, nor against, the grant of the Subclass 600 visa to him.

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 (cl.600.611):

    ·8101 – must not work in Australia; and

    ·8201 – must not engage in study or training in Australia for more than 3 months.

    Discretionary visa conditions may also be imposed, however, given the delegate did not refer to these in the primary decision the Tribunal proceeds upon the basis they would not have been. Given the healthy financial position of the review applicant and her husband in Australia, the Tribunal is satisfied the visa applicant would refrain from working in Australia and accordingly comply with condition 8101 if he was to be granted a Visitor visa. Further, given his special needs, in combination with his comfortable circumstances in Sri Lanka, the Tribunal is satisfied that he will not attempt to study in Australia. Accordingly, the Tribunal finds the visa applicant would comply with condition 8201 if he was to be granted a Visitor visa. These are matters that weigh in favour of granting the visa to him.

17. The Tribunal has also considered all other relevant matters as required by cl.600.211(c). As outlined, it is apparent the review applicant and her husband in Australia have the financial means to comfortably support a visit of the visa applicant to this country. Furthermore, the visa applicant and his mother are also of comfortable means and able to sustain such a visit. The Tribunal accepts that the visa applicant and his mother are happy with their lives in Sri Lanka.

18. On balance, the Tribunal finds that the personal circumstances of the visa applicant suggest he will return to Sri Lanka if permitted to visit Australia. The Tribunal makes this finding, in large part, due to its assessment that the review applicant is a highly credible witness. In particular, the Tribunal is satisfied the review applicant would be well aware that any visa non-compliance by the visa applicant would place in jeopardy future Australian visa applications made by members of her family, and she would not allow this.

19. 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

20. 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.

    K. Chapman
    Member