Mani (Migration)

[2021] AATA 4249

Mani (Migration) [2021] AATA 4249 (19 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Emmanuel Krishna Mani

VISA APPLICANT:  Mr Robin Ravinesh Naidu

CASE NUMBER:  1926314

HOME AFFAIRS REFERENCE(S):          CLD2019/66429584 not recorded

MEMBER:Mara Moustafine

DATE:19 August 2021

PLACE OF DECISION:  Sydney

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 19 August 2021 at 1:51pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – previous non-compliance with visa conditions – subsequently granted Visitor visas on two occasions – stable employment – presence of daughter and property in Fiji – 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 12 September 2019 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 applied for the visa on 5 August 2019. 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 the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

Evidence before the Department

1. Based on his visa application, the visa applicant is a 42-year-old citizen of Fiji born in Lautoka, Fiji, where he still lives and works as a sales merchandiser. He sought the visitor visa to attend his niece’s wedding in November 2019. He has a brother and two sisters in Australia. His family will fully fund his trip and will pay for his accommodation, food and other travel expenses. He noted that while visiting Australia on a tourist visa in 2010 (in fact, 2009), he applied for a Protection visa. However, this was refused, and he returned to Fiji.

2. Documents submitted to the Department in support of the visa application included copies of the visa applicant’s identity documents, evidence of property ownership in Fiji, a letter from his employer, a business certificate, a bank statement and divorce order, showing that he had a daughter born in 2013. He also provided a copy of his niece’s wedding invitation and a statutory declaration from her.

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because cl 600.211 because he was not satisfied that the applicant genuinely intended to stay temporarily in Australia. While noting his family ties in Fiji, the delegate concluded that the applicant’s previous non-compliance with visa conditions in seeking to remain in Australia outweighed his stated purpose of travel and ties to his home country.

   Evidence before the Tribunal

4. On 18 September 2019 the review applicant, the visa applicant’s brother, applied to the Tribunal for a review of the delegate’s decision, a copy of which he provided to the Tribunal for the purposes of the review.

5. With his application the review applicant included a statement dated 17 September 2019 in relation to the review in which he made the following points:

   ·     His brother had ample reasons to return to Fiji, including his work commitments as manager of a store and his fishing business. he also had a daughter, with whom he has a close relationship, living in Fiji with her mother.

   ·     He had applied for a refugee visa at the time of the Fiji coup in 2008 to protect his family but returned to Fiji when his application was refused and abided by the three year exclusion on travel to Australia.

   ·     He had been granted Visitor visas to attend the weddings of his nephews in Australia in 2013 and 2015 and had returned to Fiji in accordance with visa conditions.

   ·     He wished to visit Australia for 10 days to attend his niece’s wedding and would abide by the conditions of his visa.

6. Supporting documents included with the application included a copy of the visa application, identity documents for the visa and review applicant, evidence of the visa applicant’s property holding and car ownership in Fiji, documents relating to his business interests, a copy of his  divorce order dated 14 December 2016, a letter from his employer authorising leave, identity documents and a statutory declaration from his niece stating that her uncle was to be the best man at her wedding and that all his financial needs for his trip will be taken care of, a letter from his sister confirming she would provide accommodation and cover living expenses for her brother and the review applicant’s credit card statement.

7. On 10 August 2021 the review applicant submitted to the Tribunal a statement from the visa applicant in which he made the following points:

   ·     He apologised for his previous breach of visa conditions and gave his assure that this would not be repeated if he was allowed to visit Australia. He wished to get a Tourist Visa so he could visit his family in Australia and had no intention to stay in Australia for a long time.

   ·     Since his mother’s passing he was the only one in Fiji looking after her property in which he lived. He also had a young daughter who came to stay with him on the weekends. 

   ·     He had been employed by the Makan’s Drug company for nearly nine years, earning close to $20,000 per annum plus up to $5,000 sales bonuses and had a full-time company vehicle. As Sales Supervisor he cover the whole of the Western Region, including seven towns with fourteen staff working under him in different locations. He also owned a private vehicle worth $18,000.

8. The review applicant also provided a brief statement in which he noted that the visa applicant had been granted Visitor visas for Australia in 2013 and 2015 and complied with the terms of these visas, as had other family members who visited from Fiji, including another brother and his mother. He reiterated that the visa applicant only intended to visit Australia and not remain permanently, noting that he had a 10-year-old daughter in Fiji, sharing custody of her with his ex-wife.  He had stable employment as a supervisor with the same company for 10 years. He cared for the family home, which he now maintained since their mother’s passing.

9. Also provided were documents relating to the visa applicant’s employment, confirming that he has worked for Makan’s Fiji since August 2013, confirmation of his wages and a recent payslip dated 29 July 2021, a joint bank account statement with his ex-partner for period May 2021 to August 2021 and photographs of his property, vehicle and car insurance statements.

   The hearing

10. The review applicant appeared before the Tribunal by teleconference on 18 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from visa applicant in Fiji.

11. In their evidence at the hearing the review and visa applicants made the following relevant points:

    ·Although the wedding for which the visa applicant had originally sought the visa had already taken place, he still wished to visit his brother and sister and their families in Australia for 2-3 weeks.

    ·The visa applicant said he could pay for his airfares and would stay with his brother or sister. The review applicant said they would cover their brother’s costs in Australia.

    ·The visa applicant reiterated that he had no reason to remain in Australia as he had a good job, an 8-year old daughter and property in  Fiji. He wished to visit Australia during his holidays and return home.

    ·The COVID-19 situation in Fiji was improving due to high levels of vaccination so this was not a reason that he might seek to stay in Australia when borders opened. Nor did he have any involvement in politics that might encourage him to seek to stay in Australia.

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

    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 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.

14. In the present case, the visa applicant seeks the visa for the purposes of a family visit. 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)).

16. The visa applicant last visited Australia on a Visitor visa in September 2015 and complied fully with the conditions of his visa and prior to that on his visit in August 2012.  As submitted by the review applicant several of his other family members have also visited Australia from Fiji and complied with the conditions of their visas.

17. 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.

18. Based on the documentary evidence provided by the visa applicant and oral evidence of both the review and visa applicants at hearing, the Tribunal accepts that the visa applicant has enough funds to cover his airfares and his relatives in Australia would provide accommodation and cover any expenses in Australia. It accepts his written evidence that he does not intend to work or to study while in Australia. In these circumstances the Tribunal is satisfied that the visa applicant intends to comply with condition 8101 and Condition 8201.

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

20. The visa applicant has acknowledged that during his visit to Australia on a Visitor visa in 2008-2009, he applied for a Protection visa during the coup in Fiji. However, he returned to Fiji after this visa was refused. Significantly, he was subsequently granted Visitor visas on two occasions in 2012 and 2015 and returned home in compliance with the conditions of his visas. The Tribunal is satisfied that the applicant’s stable employment, the presence of his daughter and the property he has in Fiji give him sufficient incentive to return to Fiji within the timeframe of his permitted stay.

21. 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

22. 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.

    Mara Moustafine
    Member