IVKOVIKJ (Migration)

[2020] AATA 4747

IVKOVIKJ (Migration) [2020] AATA 4747 (3 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Todora IVKOVIKJ

CASE NUMBER:  1833953

HOME AFFAIRS REFERENCE(S):          BCC2018/4462620

MEMBER:Denise Connolly

DATE:3 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 3 August 2020 at 3:54pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream –genuine temporary stay criterion – providing spiritual healing to people – applicant has been working in Australia –strong incentive to remain in Australia permanently –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 376

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 30 October 2018 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 October 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 Tourist 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 she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The applicant provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant provided to the Department a statutory declaration indicating she has been providing spiritual healing to people throughout her stay in Australia and is intending to be involved in a television program featuring her healing ability. The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.211 because he was not satisfied the applicant is a genuine visitor.  

5. The applicant appeared before the Tribunal on 24 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant was granted a Subclass 600 visitor visa on 2 February 2018 which allowed her to remain in Australia for a period of up to 3 months. She arrived in Australia on 22 February 2018. She lodged another visitor visa application onshore on 12 October 2018. In a statutory declaration provided with that visa application she stated that she wished to apply for a tourist visa to extend her stay in Australia and she would be residing with Mr Zoran Nastevski (Zoran) and his family for the duration of her stay. Zoran is an acquaintance of her cousin, Mara Kis. She described Zoran in the visa application as her ‘business associate’. She stated that she came to Australia to help the community by healing. She indicated that she has assisted sick people with her spiritual healing. She has been contacted by the television program, 60 Minutes, who want to prepare a documentary on her spiritual gift. She wishes to remain onshore to convey her story. She will not be working as she is not paid or hired. She also plans to spend time with family and friends. She understands she has to go back to Macedonia before the expiry of a tourist visa. She has incentive to go home because she has a husband and child. She is aware of the conditions imposed on a tourist visa and genuinely intends to be in Australia as a tourist, and to complete her interviews with 60 Minutes but nothing more. She understands that she will have no work rights on a tourist visa. She will to be fully supported by Zoran and Mara.

9. The applicant provided with the application an email from Mr Joel Tozer, Producer, 60 Minutes, indicating he wished to obtain background information from Australian people who believe they had been healed by the applicant. He sought a list of contacts and indicated that, once they had established there were people willing to be filmed, they would arrange a meeting with the applicant. Mr Tozer referred to Zoran’s information that in Perth 1200 people lined up to be healed by the applicant.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. The delegate advised, as the applicant had declared in her statutory declaration that since arriving in Australia she was providing spiritual healing to people and is intending to be involved in a television program featuring her healing ability, he had concerns that the purpose of her stay was not as a genuine visitor. He was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes she indicated in her application, to visit her cousins and spend time with friends. He was not satisfied she met cl.600.211.

11. Since the applicant made her review application, the Department has provided to the Tribunal further information which is the subject of a s.376 certificate. It certifies that disclosure of material received by the Border Watch Allegations and Referral Team on 21 February 2019 would be contrary to the public interest because it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. This certificate was discussed with the applicant at the hearing and she was given an opportunity to comment on it.

12. The Tribunal also gave the applicant an opportunity to comment on the information, which includes the following allegations from an anonymous source.  The applicant has been working illegally in Australia. The applicant claimed she could spiritually heal the informant. The applicant receives money from people with health issues, which she transfers via Western Union to a person in Macedonia. Community radio has aired her claims to be a spiritual healer. The applicant has caused conflict within families. The applicant is enlisting the assistance of Millennium Travel to assist with a permanent residence application, having been sponsored by Zoran. The applicant has accepted plane tickets to Melbourne and Perth as payment in return for spiritual healing.

    Hearing on 24 July 2020

13. At the hearing the Tribunal explained to the applicant the requirements of the relevant law. The following is a summary of her oral evidence.

14. The applicant confirmed that she arrived in Australia on 22 February 2018 as the holder of a visitor visa. She came here to provide health assistance. She intended to stay for as long as the visa allowed. The Tribunal asked if she had permission to work. She indicated that the only work she did was humanitarian work. She acknowledged however that she did not have permission to work.

15. The Tribunal asked the applicant about her intentions and purpose when she came to Australia. She indicated that she intended to do humanitarian work as she does it with pleasure. The Tribunal asked for particulars of the spiritual healing she has done in Australia. She did not have the details of how many people she had helped or the nature of their problems. She undertook the spiritual healing wherever she was taken. She started the spiritual healing the day after she arrived in Australia, on 23 February 2018.

16. The Tribunal asked the applicant if she ever charged anyone that she healed. She indicated she never took any money. She does not deal with money but she has been bought clothes and other things.

17. The Tribunal asked the applicant about her relationship with Zoran. She indicated that he is the one who enabled her to have her visa prolonged. The Tribunal noted that he is described as a ‘business associate’ in the visa application. It asked her to explain this. She denied having any business relationship with Zoran. She indicated she has only helped him and his family. She could not explain why he was described as a business associate. The Tribunal asked how she knows Zoran and whether he arranges for her to provide spiritual healing. She indicated she met Zoran when she arrived in Australia. On her arrival she was picked up by people from the Macedonian community. Her attendance to heal in Australia was arranged before her arrival and advertised on community radio. It was Mr Simjan Georgievski who arranged for her to come to Australia and provide spiritual healing.

18. The Tribunal raised its concern that the applicant’s purpose for coming to, and remaining in, Australia may not be consistent with a purpose for which a visitor visa is granted, such as visiting relatives and friends. It explained that it may not be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose of visiting relatives and friends, as it may conclude that she wishes to remain here to provide spiritual healing and it may consider that to be work. It explained it may find that she does not meet cl.600.211. The applicant indicated that she would not have come here if it was not to do humanitarian work. She did not come here to earn money but rather to provide spiritual healing.

19. The Tribunal raised with the applicant the information in the correspondence with 60 Minutes regarding people lining up to see her in Perth. It asked who had paid for her airfares and accommodation and explained it may form the view this was payment in kind. The applicant indicated that the first time she went to Perth the airfares were paid for by the Macedonian club. She was accommodated by the people she healed. The first time she went to Perth there were about 1000 people wanting to see her; the second time there were 700 people.

20. The Tribunal noted that the applicant has now been in Australia for over 2½ years. It explained that this may not be consistent with the conduct of someone who genuinely intends to stay temporarily in Australia as a visitor. The applicant indicated that she wants to stay here as she now cannot return to her home country because of coronavirus. She also stated that she has nowhere to go if she returns to her home country as her relationship with her husband has now broken down. The Tribunal asked the applicant if she is in a relationship with Zoran. She denied being in a relationship with Zoran.

21. The Tribunal asked the applicant if she intends to apply for another visa while in Australia. The applicant indicated that, because her relationship with her former husband is now unbearable, she cannot return to her home country. However she is not in a relationship with anyone in Australia. She does not intend to form a relationship with anyone else because she is a very religious person.

22. The Tribunal explained to the applicant that there is a s.376 certificate on the Department’s file. It explained that, while the delegate formed the view the information the subject of the certificate should not be disclosed, because it would be contrary to the public interest, the Tribunal was of the view that for procedural fairness, the applicant must be given an opportunity to comment on the allegations included in the said information.

23. The Tribunal summarised the allegations set out above, made to the Department in February 2019. The Tribunal also explained to the applicant the s.359AA provisions and gave her an opportunity to comment on or respond to information which it considers would be the reason or part of the reason for affirming the decision under review. The Tribunal gave the applicant the particulars of the information, and explained the relevance and the consequences if relied on to make adverse findings. The Tribunal also explained that the applicant could ask for more time and it would consider whether it was reasonable to give her more time. She did not ask for more time.

24. The Tribunal explained that the informant alleged the applicant had been working illegally in Australia, receiving money from people with health issues and transferring that money via Western Union to a person in Macedonia. It explained that the informant believed the applicant had caused conflict within families. It also informed her that it was alleged she had enlisted Millennium Travel to assist her with a permanent residence application, having been sponsored by Zoran. It explained that it was alleged that she had accepted plane tickets to Melbourne and Perth as payment for spiritual healing.

25. The Tribunal also explained that the applicant’s visas have been subject to condition 8101 – No Work. It explained that if it relied on the information provided by the informant it may find that she has been working in Australia as a spiritual healer, in breach of condition 8101. It may find that she has been accepting money which she has transferred offshore. It may find she has accepted airfares as payment. The Tribunal explained that it would then not be satisfied that she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa, because she has breached condition 8101.

26. The Tribunal also explained that it may find that she intends to apply for a permanent visa and therefore does not genuinely intend to remain in Australia temporarily.

27. The Tribunal explained that if it made those findings it would not be satisfied the applicant genuinely intends to stay in Australia temporarily for purposes consistent with a visitor visa.

28. The applicant chose to respond at the hearing. She stated that she has never taken money for her spiritual healing. However she has been able to live in Australia for 2½ years because food, accommodation and clothing have been provided by the people she helps. She has never wanted to break the rules in Australia so she has not taken any cash. With respect to travel undertaken in Australia, the applicant confirmed that the people who need her contribute to the purchase of airline tickets. She has been picked up and dropped off by members of the community.

29. The Tribunal asked the applicant if she had any other evidence she wished it to take into account. The applicant repeated that everything she has done in Australia has been for humanitarian reasons. She lives on her own. She does not know who covers the cost of her rent but thinks it is covered by the people who need her. She thinks that Mr Sasha Cvetkovski, a cabinet maker, is the person who actually pays her rent to the landlord. He does this because he had a problem which she solved. She now wishes to remain in Australia because she has been able to heal people with problems and they are happy.

    Assessment of the evidence

30. 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.

31. The Tribunal must 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 include 8101 – must not work in Australia and 8531 – must not remain in Australia after the end of a permitted stay.

32. Based on the applicant’s oral evidence the Tribunal finds the applicant’s purpose for first coming to Australia in February 2018 was to provide spiritual healing. It finds, based on her oral evidence, that the main purpose for which she seeks another visitor visa is to continue to provide spiritual healing in Australia. She also wishes to remain here because her relationship with her husband in Macedonia has broken down and she thinks she cannot return to her home country.

33. The Tribunal has considered the applicant’s purpose for remaining in Australia. The Tribunal is not satisfied her proposed activities relating to spiritual healing are consistent with the objectives of the visitor visa program; to facilitate the entry of genuine tourist, business and family visitors. The principles governing the entry of visitors to Australia are based on an applicant’s genuine intention to visit temporarily and to not work unlawfully. For the following reasons the Tribunal is not satisfied the applicant genuinely intends to visit temporarily and not work unlawfully.

34. The Tribunal accepts the applicant’s oral evidence that she does not intend to return to her home country, the Republic of Macedonia, because her relationship with her husband has broken down. It accepts her evidence that she now wishes to remain in Australia. It notes her comments that she cannot depart Australia because of the coronavirus, however it is satisfied that regardless of the current Covid-19 circumstances, her intention is now to remain in Australia permanently, to provide spiritual healing and to avoid her husband.

35. When the Tribunal raised a concern that the applicant may have been working in Australia and receiving payment in the form of airfares and subsistence support, she was emphatic that she has only been doing humanitarian work and spiritual healing. She was emphatic that she has not received money as payment. However she acknowledges that her airfares, accommodation, clothing and food have been covered by those for whom she has provided spiritual healing.

36. The Tribunal has considered the allegations provided to the Department in February 2019 by the anonymous informant. It is not satisfied there is sufficient evidence to support the claim that the applicant has been receiving cash and sending it visa Western Union to Macedonia.

37. The Tribunal finds the applicant has been providing healing services in Australia. It is of the view healing services are normally remunerated, regardless of whether they are humanitarian in nature, conventional treatments, or effective. The Tribunal is satisfied there is an expectation that the applicant will be supported for her work; hence the support in the form of airfares, accommodation, food and clothing. Considered overall the Tribunal is satisfied the applicant has been working in Australia and, while it accepts she has not been receiving cash, it is satisfied she has received other benefits for her services.

38. As discussed with the applicant at the hearing each visa she has held in Australia has been subject to condition 8101 – No Work. The Tribunal finds, by providing spiritual healing, the applicant has been working in breach of condition 8101. It is also satisfied that she intends to continue to provide spiritual healing, and accordingly intends to continue to breach any No Work condition which would be imposed on any future Subclass 600 visa.

39. The Tribunal has taken into account the allegation of the anonymous informant that the applicant has caused conflict within families. It is not satisfied there is sufficient evidence to support this claim. In any case, it is not necessary for the Tribunal to make a finding about this allegation. It has also taken into account the claim that the applicant is enlisting Millennium Travel to assist with a permanent residence application, having been sponsored by Zoran. There is no supporting evidence before it that the applicant is being sponsored by Zoran to make a permanent visa application. While she could not explain why Zoran was described as a ‘business associate’ in the visa application she was emphatic she is not in a relationship in Australia, with Zoran or anyone else and she does not intend to be because she is a very religious person.  The Tribunal has not seen evidence supporting the claim that the applicant intends to apply for a permanent visa. As there is no current partner in Australia, her own evidence indicates there is no-one who could sponsor her for a partner visa. The Tribunal is not satisfied the applicant is enlisting assistance to make a permanent visa application. However based on her oral evidence regarding the reasons she cannot leave Australia and the breakdown of her relationship with her husband, the Tribunal is satisfied the applicant intends to remain in Australia permanently.

1. The applicant has now been in Australia for 2½ years. While it appreciates there are current difficulties in departing Australia, the Tribunal notes there is no evidence to indicate the applicant made any attempts to depart Australia prior to the border closure earlier this year, despite having already been in Australia for over 2 years at that time.

2. Overall the Tribunal is not satisfied the applicant intends to remain in Australia temporarily. It finds she has worked in Australia in the past as the holder of visitor and bridging visas, despite having condition 8101 imposed on those visas. It also finds she intends to continue to do so if another Subclass 600 visa is granted. It accepts her evidence that she does not want to return to her home country because her relationship with her husband has broken down. She was quite candid about this at the hearing. She does not appear to intend to make any permanent visa application, however she does not have plans to return to her home country. Accordingly it has concerns that she will breach condition 8531 by remaining in Australia after the end of a permitted stay.

3. On the basis of its findings the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia. Accordingly, for the above reasons the Tribunal is not satisfied that the 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

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

   Denise Connolly
   Member