Kee (Migration)

[2017] AATA 2041

Kee (Migration) [2017] AATA 2041 (16 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lak Wei Kee

CASE NUMBER:  1702221

DIBP REFERENCE(S):  BCC2017/112590

MEMBER:Melissa McAdam

DATE:16 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 16 October 2017 at 9:34am

CATCHWORDS
Migration – Visitor (Class FA) – Subclass 600 (Visitor) – No indication or evidence of financial support – Non-attendance to hearing – No evidence to prove genuine intention to stay temporarily in Australia

LEGISLATION
Migration Act 1958, ss 65, 362B, 379A
Migration Regulations 1994, Schedule 2 cls 600.211, 600.222

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 20 January 2017 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 10 January 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 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 applicant arrived in Australia on 12 October 2016. He provided the following information in his visa application:

   a.He is a 38 year old single male from Perak, Malaysia who is in Australia.

   b.He wants to extend his stay until 12 April 2017 to ‘travel around Australia’.

   c.He has a sister in Australia who is a temporary resident.

   d.He was employed in Malaysia as the Supervisor at a Food Retail Company.

   e.He will self-fund his further stay in Australia through funds in the Commonwealth Bank.

   f.He submitted copies of the following documents:

   i.His Malaysian passport

   ii.A Commonwealth Bank transaction statement showing a balance of $5,361.21 on 9 January 2017.

5. On 11 January 2017 the Department delegate wrote to the applicant requesting the applicant complete  and return a ‘Declaration Further Stay as a Visitor’ Form within 7 days, setting out the following:

   a.An explanation of the applicant’s activities while in Australia.

   b.An explanation of the applicant’s intended activities in Australia if his visa is granted.

   c.Whether or not the applicant intends to apply for any other Temporary or Permanent visa during his stay in Australia.

   d.Whether or not the applicant has family or friends in Australia, and the details of any.

   e.Details of the applicant’s current personal situation in his home country, including his employment, property ownership and family members.

6. The Department delegate also requested the applicant to provide the following by 18 January 2017:

   a.Evidence of incentive to return

   b.Evidence of approved leave from his current employer

   c.Evidence of adequate funds or access to adequate funds

7. On 20 January 2017 the delegate recorded that no response was received from the applicant.

8. The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.211 because he had not provided the evidence and information requested, so she could not be satisfied he intended to stay temporarily in Australia for the purpose of genuine tourist activities.

9. With his application for review the applicant lodged copies of the following documents:

   a.A completed ‘Declaration Further Stay as a Visitor’ Form in which he writes:

   i.He has been to many major tourist landmarks and attractions in Sydney, including the Harbour Bridge and Opera House. He has enjoyed activities such as sand-boarding and camel riding. He admired the firework display on New Year’s Eve.

   ii.He plans to travel around Queensland and is interested in marine life and national animals. He will go to Cairns for scuba-diving and the Sunshine Coast, Tangalooma and Moreton Island. He wants to hand feed dolphins.

   iii.He does not intend to apply for another visa while in Australia.

   iv.His sister, Ai Peng Kee, is studying English in Sydney.

   v.He has been employed as a supervisor at Rainbow Nutrito Club since 2014. He has a house and land in Malaysia and money in the bank. His mother is waiting for him to come home.

   b.A typed letter from Yeok Kun Lim, Company Manager, Rainbow Nutrito Club, dated 2 February 2017 certifying that the applicant is employed by the company and draws a monthly salary of 3000 ringgit and that he has three months’ holiday.

   c.A Sale and Purchase Agreement  between the applicant, his sister and other parties for land and building in Mukim, Pulau Pinang.

   d.Transaction details for the applicant’s Commonwealth Bank account showing a balance of $5,361.21 on 9 January 2017 with transfers to and from the applicant’s Commonwealth Bank Savings account.

10. On 8 August 2017 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 12 October 2017. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent SMS reminders about the hearing to the applicant five business days and one business day before the scheduled hearing.

11. On 26 September 2017 the applicant advised the Tribunal that he wanted to give oral evidence. However, he did not appear before the Tribunal on the day and at the scheduled time and place of the hearing.

12. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the 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 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.

14. In the present case, the applicant seeks the visa for the purposes of remaining in Australia to ‘travel around’.  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 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)).  There is no evidence before the Tribunal that the applicant has not complied substantially with the conditions of his last substantive visas. The Tribunal therefore accepts the applicant has formerly complied with his visa conditions.

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(3)):

    ·8101 – must not work in Australia

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

17. The applicant has not submitted evidence of how he will support himself while remaining longer in Australia, apart from submitting a bank statement page from January 2017 showing approximately $5000 in his bank account with a number of cash deposits of $1,000 or more over a period of four months. There is no description of the source of funds deposited into the applicant’s bank account.

18. The Tribunal notes the applicant has been in Australia for one year now. On the evidence provided by the applicant there is no indication as to how he will support himself to continue to stay in Australia or how he has supported himself to date.  There is no evidence from the applicant of receiving funds from Malaysia to support his stay in Australia.  There is no indication how the applicant will support himself in Australia for a continued stay without working. On the available information the Tribunal is not satisfied the applicant will comply with a condition to not work in Australia.

19. There is no evidence or indication the applicant wants to or needs to study in Australia. the Tribunal is satisfied that the applicant will comply with condition 8201 in Australia.

20. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

21. The Tribunal notes that the applicant applied for a further Visitor visa to remain in Australia until 12 April 2017. It is now October 2017 and approximately six months has passed without any explanation from the applicant as to why he did not depart the country in April as indicated.  There is no clear information from the applicant that he genuinely wants to stay in Australia temporarily. He merely writes that he does not intend to apply for another visa in Australia.

22. The Tribunal also notes that the applicant failed to attend his Tribunal hearing to discuss his intentions to stay further in Australia, and whether or not he genuinely intends to remain in Australia temporarily or the purposes of a Visitor visa.  The applicant did not avail himself of the opportunity to give oral evidence and present oral arguments to the Tribunal on this critical issue.

23. In all the circumstances and on the basis of the information before it 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. The Tribunal therefore finds that the requirements of cl.600.211 are not met.

    DECISION

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

    Melissa McAdam
    Member