Krishnappa (Migration)

[2017] AATA 2039

Krishnappa (Migration) [2017] AATA 2039 (27 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Mamatha Krishnappa

VISA APPLICANT:  Mr Kishore Kumar Krishnappa

CASE NUMBER:  1707922

DIBP REFERENCE(S):  CLD2017/1746315 N17/04042872

MEMBER:Christine Cody

DATE:27 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 27 October 2017 at 1:41pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine visitor – Review and Visa Applicants are siblings – Applicants claim to work for the same company – Family land dispute – Offer of a bond

LEGISLATION

Migration Act 1958, ss 65, 359AA

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 24 March 2017 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 is the brother of the review applicant. He applied for the visa on 27 February 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. The primary purpose of the application was for the visa applicant to visit his sister (the review applicant), (and for tourism) in Australia.

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. A number of supporting documents were supplied to the Department, including application form, identity documents and bank statements for the visa applicant and financial documents relating to the review applicant and her husband.

5. By way of background generally, the visa applicant is a 29 year old unmarried Indian man from Bengaluru, Karnataka. At the time of his application he declared that he was not working[1]; he had taken a break from his work to settle some ancestral property issues. He has savings in his bank account and receives rent from inherited property.

   [1] As set out in the delegate’s decision record provided to the Tribunal by the review applicant.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because it appeared that the visa applicant was unemployed and he had not provided details of his current activities or future job prospects. The delegate was thus concerned that the applicant may intend to travel to Australia for reasons other than a genuine visit.

7. The review applicant lodged an application for review together with a copy of the delegate’s decision record. The Tribunal wrote to the review applicant, informing her that on the evidence before it, it was unable to make a favourable decision. The review applicant produced further documents, including in relation to the visa applicant’s new job at “Job Matrix” in India starting 25 September 2017, with a contract signed by the Managing partner Gaurav Kumar, rent receipts, and information relating to relatives in India.

8. The review applicant appeared at a hearing before the Tribunal on 25 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in India. The Tribunal put concerns to the applicants, and information pursuant to s.359AA of the Act. The Tribunal also allowed the review applicant further time after the hearing to provide any further explanations she may seek to do. The following day, the review applicant forwarded additional documents to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister, a permanent resident, and Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

12. 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)). The Tribunal accepts that the visa applicant has not previously applied to come to Australia

13. 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)) which include:

    ·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.

14. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In doing so, the Tribunal considered, but is not bound by, the Department’s policy guidance contained in its Procedures Advice Manual (PAM3).

15. However, the Tribunal is not satisfied that the visa applicant intends a genuine visit to Australia; in particular it is not satisfied that the applicants have been honest with the Tribunal. The Tribunal’s concerns have arisen for the reasons set out after the following summary.

16. The following is sourced from the review applicant’s evidence and her written material:

    ·     The review applicant is 33 years old. She married in India, she travelled to Australia having been granted a skilled permanent residence visa and her husband followed her six months later. Her husband works for NAB as a credit analyst. She currently works for the NSW Department of Education as a resourcing specialist through a parent company Kelly OCG.  

    ·     She had eight years’ experience in IT recruitment with a company called Job Matrix when she was in India; the same company with which her brother has recently gained employment. At the hearing as there was an issue with the evidence about Job Matrix the Tribunal asked the applicant to show it the website and she said that she could not access the website as there appeared to be something wrong with it. She did however manage to locate the company through LinkedIn and she also showed the Tribunal her profile on LinkedIn which referred to her eight years of experience in India at Job Matrix. The Tribunal is prepared to accept that she has previously worked with Job Matrix in India.

    ·     She said that she had recently assisted her brother to get a job with Job Matrix; she was the one who had referred him to the company, and her brother reports to the same person she reported to: Gaurav Kumar, a director. She had spoken to Gaurav about her desire for her brother to come to visit her, so although he is a new employee, as Gaurav knows her he agreed that her brother could take 3-4 weeks leave if his visa is granted.

    ·     Concerning her brother’s past work history, she said that he had initially worked for UNISYS in business process outsourcing (customer service executive) for close to 2.5 years; he had then worked in account payables for OMEGA Health care for 2 years. Finally he worked for ACCENTURE from November 2015 until November 2016 at which time he left his job so that he could sort out a family land/ succession dispute. He also at the same time tried to set up his own business but this did not work. He then got a job in September 2017 with Job Matrix. The Tribunal notes that although the details of his past jobs were somewhat at odds with the evidence of the visa applicant the Tribunal does not place any weight on this, and considers that the visa applicant’s evidence was broadly consistent with the review applicant’s evidence concerning his past jobs.  The Tribunal is thus prepared to accept that the visa applicant had three previous employments, until late 2016 when his employment with Accenture ceased.

    ·     The Tribunal put to the applicants that the rent receipts all appear to have been written at the same time; both applicants said this was not the case. The Tribunal, not being a handwriting expert and without the benefit of such an analysis, will give the applicants the benefit of the doubt in this respect, and is thus prepared to accept that the visa applicant receives rent from property in India.

    ·     The review applicant and her husband will accommodate and support the visa applicant while he is in Australia.

17. However, the Tribunal was concerned that there was inconsistent evidence between the applicants which related to the claimed incentives for the visa applicant to return to India in accordance with the terms of any proposed visa. For example:

    · The visa applicant’s new job with “Job Matrix” was said to be an incentive encouraging the visa applicant to return to India after his visit to Australia. The review applicant told the Tribunal that because she had worked for the company for eight years she had referred her brother for the job which he was successful in obtaining. However, when the Tribunal asked the visa applicant how he got the job at Job Matrix, he said that a friend referred him. The Tribunal put to him that his sister said that she had referred him, and he responded no. When the Tribunal put this information to the review applicant pursuant to s.359AA of the Act, she responded that he must have thought that he should not declare that she had referred him to the job. She is not sure why he said this.

    · The visa applicant was asked whether his sister had any connection with Job Matrix and he said no. The Tribunal then asked him if she had ever had any connection with Job Matrix and he said no. The Tribunal then asked him whether she had ever worked at Job Matrix and he said no. This however was in contrast with the review applicant’s claim that she had worked at Job Matrix for eight years prior to coming to Australia. When the Tribunal put this information to the review applicant pursuant to s.359AA of the Act, she responded that he must have panicked and he was concerned about how he got the job at Job Matrix; this could be the reason why he denied that she had a relationship with the company. The Tribunal has taken into account that when it was put to the visa applicant that his sister had claimed to have worked for Job Matrix for eight years he then said she was a managing partner and he may have heard wrongly; the Tribunal is not prepared to accept that he misheard, given the number of opportunities he was given to say that she had worked at and had a connection to Job Matrix.

    · The visa applicant told the Tribunal that at Job Matrix, he reports to Gaurav Kumar. However, when the Tribunal asked whether his sister knew him, he said no. This was inconsistent with the review applicant’s evidence that Gaurav Kumar had been her supervisor, and she had been speaking with Gaurav Kumar about the visa applicant obtaining leave if he got a visa. When the Tribunal put this information to the review applicant pursuant to s.359AA of the Act, she responded that he panicked and didn’t realise the consequences of what he was saying, this is what she can think of. The Tribunal is not prepared to accept that the visa applicant is employed with Job Matrix; it considers it is more likely that this has been falsely presented to the Tribunal to support his visitor visa application.

    · It was said to be an incentive that there was family land, which was a reason for the visa applicant to return to India. It had also been claimed that the reason why the visa applicant no longer worked at his job at Accenture was because he had voluntarily left his employment to sort out the situation with the disputed land. The Tribunal had a concern regarding the applicants’ credibility in relation to the claimed property. As put to the review applicant pursuant to s.359AA of the Act, she had claimed that the family dispute about land which had led her brother to quit his last job at Accenture was still not resolved and that this was a reason for him to return; the visa applicant however gave evidence that the dispute had been resolved in the middle of 2016. When this was put to the review applicant, she said that there must have been an oral agreement in the middle of 2016 and there had been oral agreements in the past but that she was waiting for there to be a written agreement before she accepts that the dispute is resolved. The Tribunal is not prepared to accept this explanation given her evidence that it has been the visa applicant who she said had been involved in the past discussions; if past oral agreements had meant nothing, the Tribunal considers he would have said that there was a tentative agreement; not that the dispute was finished and resolved over one year ago. The Tribunal is not satisfied that they have been truthful about the land dispute nor the reason why the visa applicant had stopped working at Accenture.

18. The Tribunal considers that the above inconsistencies undermine their credibility. It has taken into account the post hearing submissions, which include a letter from the visa applicant stating that he apologises for not giving complete information during the call, because he was nervous. He confirms that the purpose of his visit is predominantly to support his sister and brother-in-law with their first baby. He agrees that the property dispute has been verbally agreed between the family parties but not finalised in writing. He thus needs to be present in India during the transfer of property. He confirms that he has been working for Job Matrix since 25 September 2017 as a senior recruitment consultant, and that his sister referred him to the work. He has negotiated a four week break from his employer if he was to be granted a visitor visa. He assures the Tribunal that he would return to Bangalore at the end of four weeks. The Tribunal has also taken into account the review applicant’s assertion that it was early in the morning when her brother was being spoken to. The Tribunal notes however that he did not claim during or after the hearing that his responses were mistakes, or due to him being too tired. The Tribunal is satisfied that both applicants understood the questions and proceedings and were able to give evidence (and present arguments).

19. The Tribunal felt considerable sympathy for the applicants. It is prepared to accept that they lost their parents in a car accident in 2006[2] and that they have a close bond. The review applicant will shortly give birth[3] and she would like her brother to be present.

    [2] Refer to the death certificates provided by the review applicant.

    [3] Refer to medical certificates provided to the Tribunal.

20. The Tribunal accepts that the review applicant has not sponsored anyone in the past, and that for the anticipated birth of their child her husband has sponsored his parents to visit; the father has been granted a three year visa (maximum stay of 12 months at a time), and the mother’s visa is pending. The applicants gave consistent evidence that the visa applicant had been living, with the review applicant, (until she came to Australia), with the review applicant’s husband’s family, and more recently he lives close by to that family and maintains contact, seeing them on a regular basis. The Tribunal is prepared to accept that he has a bond with relatives in India, but at the same time he has a bond with his sister in Australia. The Tribunal has also considered the submission that as the review applicant came to Australia on a work visa, the visa applicant could do the same thing; he does not have a need to lodge a protection visa application or overstay or otherwise not comply with his visa conditions.

21. The Tribunal at hearing raised the option of the review applicant offering a financial bond to the Department as an incentive for her brother to comply with the conditions. It explained that the Tribunal was not able to impose this but it is something that could be taken in to consideration. She said that she did not know about this as an option and that she would be willing to put up a bond; she is not sure of the amount as she would need to discuss this with her husband. After the hearing she confirmed that she and her husband are prepared to offer $8000 bond as security for the visa applicant’s stay of four weeks. The Tribunal accepts that although her brother may be unemployed, the review applicant would seek to support him financially in coming to Australia.

22. The Tribunal has taken into account all of the submissions and the incentives for the visa applicant to return. However, as explained to the review applicant at hearing, it is difficult to accept the assertions that the visa applicant only intends a genuine visit if, on her own evidence, he was prepared to tell untruths to the Tribunal.  The review applicant acknowledged this was a difficulty.

23. While the Tribunal has considered all of the above evidence and acknowledges some of the evidence could indicate that a genuine visit may be intended, this cannot overcome the Tribunal’s concerns with the other evidence, such as his lack of employment, the untruths told to the Tribunal in this respect, and the untruths told to the Tribunal about the land dispute. The Tribunal is also not satisfied that it has been provided with a satisfactory explanation as to why such untruths were told. In the circumstances, the Tribunal is unable to accept that the visa applicant does intend a genuine visit.

24. 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

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

    Christine Cody
    Member