KRISHNASHARMA (Migration)

[2018] AATA 1781

KRISHNASHARMA (Migration) [2018] AATA 1781 (1 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs GAYATHIRI KRISHNASHARMA

VISA APPLICANT:  Mr RAKUNATHAN SABARATNAM

CASE NUMBER:  1704471

DIBP REFERENCE(S):  P17/01128848

MEMBER:Angela Cranston

DATE:1 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 May 2018 at 10:00am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – Purpose of visit – Pending permanent visa application – Length visits – Immediate lodgement of another visa after return – Limited ties in home country – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
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 10 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 applied for the visa on 28 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.

3.    In his application the applicant stated he wanted to visit Australia from 1 April 2017 to 1 April 2022, that he was male, born in 1948, was widowed, retired and lived in Mallavi Sri Lanka. He also stated the review applicant would be providing financial support for his visit to Australia. He also stated that from 2009 to July 2015 he was temporarily living in India with his youngest daughter and during his stay in India, he renewed or extended his Indian visas.  

4. 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.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 for the following reasons:

In support of your visa application you have forwarded very limited information and according to the given information you are unemployed and have no strong employment commitment which will encourage you to return from Australia. You also have shown limited evidence of any other strong commitments in Sri Lanka and I am therefore not satisfied that you have sufficient incentives to return. Having considered the evidence I am not satisfied that your economic or  financial circumstances are strong and that they represent a significant incentive for you to return to Sri Lanka.

I accept that you have family ties in Sri Lanka and that they may provide some incentive for you to return. However I am not satisfied that they are sufficiently strong to overcome my concerns in relation to your financial circumstances discussed above.

I have considered your previous overseas travel however I am of the view that it has been limited regional travel and I do not consider that it provides a strong indication that you will comply with the conditions of the visa if granted and return to Sri Lanka before the expiry of your visa.

6.    The review applicant appeared before the Tribunal on 23 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

7.    The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

8.    The Tribunal talked about the Department’s decision which said that the applicant’s economical and financial circumstances and his familial ties were not strong enough to overcome concerns the applicant would remain in Australia.

9.    The review applicant stated the applicant was completely dependent upon her and they had applied for an aged dependent relative visa five years ago which was currently in the queue. She also stated the applicant had a son who was married with children in Mallavi, who the applicant lived with, a daughter in France (who was previously in India), and a daughter in London. She stated the applicant’s brothers were in Canada.

1. The review applicant agreed that the movement record indicated that the applicant arrived in Australia on 19 March 2016 and departed on 17 February 2017.  The Tribunal then put to the review applicant that the applicant had applied for the tourist visa currently under review but had then returned to Australia in March 2018. She agreed, stating that his application for a tourist visa had been rejected but he had returned on a (sponsored family stream) visitor visa that was valid until 1 March 2019.

2. The adviser stated the reason why he had applied for a tourist visa was because a three year visa could be granted that would enable the applicant to stay at any one time for up to 12 months, however the sponsored family stream visitor visa was only valid for a year. 

3. The Tribunal put to the review applicant that it finding it hard to understand why the applicant would return to Sri Lanka and it needed to consider whether he was a genuine visitor. The Tribunal indicated that even though he had one family member in Sri Lanka, he had applied for permanent residence in Australia and it seemed he wanted to remain in Australia which may mean he did not intend a genuine visit. The review applicant stated the applicant wanted to lawfully remain which meant he would not overstay his visa.

4. The Tribunal put to her that one of the things it needed to consider was whether the applicant intended to remain in Australia temporarily however the applicant had continued to remain in Australia and that, combined with his permanent visa application meant the Tribunal was struggling to understand that he was a visitor. The review applicant stated he was a visitor until his permanent residence was finalised. The Tribunal also put to her that it needed to think about whether he was trying to stay in Australia while his permanent residence was determined. She also stated they were using the visa so that the applicant could remain with her as much as possible. The Tribunal put to her that a visitor visa was for people who intended to visit Australia and then return to their home country but it was beginning to sound like Australia was the applicant’s home. She stated other families got five year visitor return visas.

5. The Tribunal put to her that the applicant had been in Australia from March 2016 to February 2017, had then returned to Sri Lanka and almost immediately applied for a tourist visa to return to Australia and while that application was being assessed, he had been sponsored for a sponsored family stream visitor visa and had again returned to Australia for another year. She stated they were using the temporary visa to bridge the gap between now and the grant of the permanent visa but she also wanted the applicant to stay legally.

6. The adviser stated that the applicant had never breached visa conditions and would never jeopardise the aged relative visa application. He also stated that people in the queue normally got a three year visa that allowed them to come and go. He also provided information from the Department website stating that due to the length of the permanent parent visa queue, a more generous visitor visa might be granted.

7. The Tribunal then spoke to the applicant. He stated he came to Australia as a tourist and was here with the review applicant. He stated he would return to Sri Lanka whenever the visa expired because the visa had only been issued for one year. The Tribunal asked the applicant where his home was and he stated his place of residence was in Sri Lanka. He also stated at the moment he was with the review applicant and he did not have his wife.

8. The review applicant stated he was eligible for a three year visa.

9. The adviser also stated the applicant had been to France in January/February 2018.

10. Movement records indicate the applicant was granted a visitor visa on 4 March 2016 and arrived in Australia on 19 March 2016 and departed on 17 February 2017. He was again granted a tourist visa on 2 December 2017 that is valid until 1 March 2019 and arrived on 1 March 2018. 

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant, his daughter. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

3. 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)).

4. 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.

5. Condition 8501 - adequate arrangements for health insurance, 8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia and 8558 - cannot stay more than 12 months in any 18 month period may be imposed. In this case, the Tribunal considers condition 8503 should be imposed.

6. There is no evidence before the Tribunal that the applicant has previously worked, studied or overstayed in Australia.

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

8. The Tribunal has considered the personal circumstances of the applicant who is a Sri Lankan citizen and is currently in Australia and holds a tourist visa that is valid until 1 March 2019. The applicant is 70 years old, widowed and retired with one child in Sri Lanka, one in France, one in England and the review applicant in Australia. He has applied for an aged relative visa which is a permanent visa and is currently in the queue. He has also had a lengthy visit to Australia between March 2016 and February 2017 and again entered Australia on 1 March 2018 on a sponsored family stream visitor visa that will allow him to remain until 1 March 2019.

9. When he departed Australia in February 2017 he immediately lodged another application for a visitor visa to return to Australia.

10. The Tribunal accepts that the parties are credible and the applicant will comply with the conditions of any tourist visa in that he will not overstay the visa. Be that as it may, the test that the Tribunal needs to consider is whether the applicant genuinely intends to stay temporarily in Australia for the purposes of a visit. Given that the applicant has applied for permanent residence, has already spent a considerable time in Australia and immediately lodged another application for a visitor visa when he departed Australia in February 2017 and returned to Australia on 1 March 2018 and given the review applicant’s admission that they are using the visitor visa to bridge the period between now and when his aged relative visa is granted, the Tribunal has concerns that the visa applicant is not a genuine visitor and is using visitor visas to set up de facto residence in Australia. Further, the applicant’s only relative in Sri Lanka is his son, and although the Tribunal accepts the applicant has resided with his son, he also resided from 2009 to July 2015 with his daughter in India and again visited her in France in January/February 2018 which means that the applicant has spent only approximately 2 years in Sri Lanka since 2009.

11. Weighing up all of the relevant matters, the applicant’s current personal circumstances suggest there are significant pull factors encouraging him to remain in Australia, which outweigh the push factors influencing him to return to Sri Lanka. Indeed, his ties to Sri Lanka appear limited to his past and his son. The Tribunal finds that the applicant is not a genuine visitor and is using visitor visas to set up de facto residence in Australia.

12. 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.

13. The Tribunal has some sympathy for the review applicant who clearly loves and wants the applicant to be with her. While the Tribunal accepts that the parties will find this decision disheartening, the Tribunal is also mindful that the applicant’s sponsored family stream visitor visa is valid until 1 March 2019 and they are pursuing permanent residence for the applicant.

DECISION

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

Angela Cranston
Member