NISHANTH (Migration)

[2019] AATA 1109

NISHANTH (Migration) [2019] AATA 1109 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs VASUMATHY NISHANTH

VISA APPLICANT:  Mr AJANTHAN NALLANATHAN

CASE NUMBER:  1732920

HOME AFFAIRS REFERENCE(S):           CLD2018/2738159 N17/01150164

MEMBER:Melissa McAdam

DATE:14 March 2019

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 14 March 2019 at 9:31am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting sister and family – accommodated and supported by the review applicant while in Australia – significant family ties in home country – visa applicant’s work and family obligations – migration history of review applicant and applicants’ mother – willingness to lodge a security bond – review applicant’s wish to sponsor parents in the future – 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 Immigration on 17 November 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 review applicant was represented in relation to the review by her registered migration agent.

3. The visa applicant applied for the visa on 31 October 2017. 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.

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 visa applicant provided the following information in his visa application:

   a.He is a 31 year old single man from Jaffna in Sri Lanka.

   b.He wants to visit Australia for one month.

   c.He lives with his parents in Jaffna.

   d.His sister and brother live in Australia and are Australian citizens.

   e.He has worked at the Eye Centre in Jaffna as a Technical Assistant for over four years.

   f.He has previously been refused a Visitor visa to Australia.

   g.He enclosed copies of the following documents:

   i.His Sri Lankan passport.

   ii.An Indian visa stamp from 2008.

   iii.Singapore Entry and Exit Stamps from 2008.

   iv.His Sri Lankan ID Card.

   v.His Sri Lanka Birth Certificate.

   vi.Details of his relatives.

   vii.A letter from his employer, dated 20 June 2017, stating that the visa applicant does office and technical work in the eye clinic and that he has been granted three months’ leave to visit Australia.

   viii.An assignation of property to the visa applicant from his parents.

   ix.A Sri Lanka Police Clearance Certificate.

   x.A letter of invitation to the visa applicant from his sister, the review applicant, in which she states she migrated to Australia on a Spouse visa; her mother has twice visited Australia and complied with her visa conditions; the visa applicant works and owns a business in Sri Lanka and also has rental income; she will provide accommodation, food and transport to the visa applicant in Australia; and the visa applicant will depart Australia.

   xi.A letter from the Commercial Bank in Sri Lanka stating that the visa applicant has 520,226.81 LKR in his bank account.

   xii.A Rates Notice for the review applicant’s property in Pendle Hill.

   xiii.A salary payment advice to the review applicant.

   xiv.A Visa Entitlement letter from the Department of Immigration for the applicants’ mother.

   xv.The review applicant’s Australian passport.

   xvi.The review applicant’s Australian Citizenship Certificate.

   xvii.The review applicant’s Sri Lankan Birth Certificate.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because his circumstances have not changed since his last visitor visa refusal; his income and savings in Sri Lanka were not substantial; his family ties in Sri Lanka were not strong enough to overcome the delegate’s concerns; his only previous travel was regional; and he therefore did not demonstrate sufficient incentives to return to Sri Lanka.

7. On 8 March 2018 the applicants’ Agent sent the following written submission to the Tribunal:

   The Review Applicant migrated to Australia on a spouse visa; the Review Applicant’s mother has been to Australia twice; her mother has complied with her visa conditions in Australia; the Visa Applicant owns a business in Sri Lanka and has rental income in Sri Lanka; the Visa Applicant’s father and mother will remain in Sri Lanka during his visit to Australia; the Visa Applicant has never married and has been living with his father and mother; and the Visa Applicant has obtained a Sri Lankan police clearance which shows that he has no issues with Sri Lankan authorities.

8. On 22 February 2019 the applicants provided the following further written information to the Tribunal:

   Full name and date of birth, dates of arrival of any other of your close relatives … who have come to Australia within the past 10 years:

   Mr Karthigesu Nishanth (Husband) (dob: 24 November 1979) (Date of arrival: 30 September 2014)

   Mr Vetrivelu Kindapillai (Uncle) (Date of arrival: 2013)

   Mrs Kidnapillai Thanapackiyaladchumy (Aunt) (26 November 1950) (Date of arrival: 2013)

   Mrs Nallanathan Thanaledchumy (Mother) (dob: 2 January 1964) (Date of arrival: 2005, 2017 and 2019)

   Mrs Akilan Kirushanthi (Sister-in-Law) (dob: 17 May 1988) (Date of arrival: 2015)

   …

   The Review Applicant migrated to Australia on a spouse visa. The Review Applicant's mother has been to Australia twice … and she is currently in Australia. She is departing Australia on 28 April 2019. She has complied with her visa conditions in Australia.

9. The applicants also submitted copies of the following documents:

   i.A letter from  the Chairperson of the Sri Saddainathar Sivan Temple stating that the visa applicant has worked at the temple since January 2018 as a cashier and store keeper.  The Temple will grant him leave to visit Australia except for the periods between 11 March and 25 March 2019, and between 21 July and 5 August 2019, when there are major festivals occurring.

   ii.The visa applicant’s Household Registration Confirmation.

   iii.The visa applicant’s Bank Account statement showing a closing balance of 315,188.82 LKR as at 31 January 2019.

   iv.A Subclass 600 visa grant to Thanaledchumy Nallanathan on 3 September 2018.

   v.The NSW Birth Certificate for the review applicant’s daughter, born on 12 November 2018.

10. The review applicant appeared before the Tribunal on 28 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. 

11. The following is a summary of the information provided by the review applicant at the hearing:

    a.The visa applicant owns a grocery shop in Jaffna which he is renting to someone else. 

    b.The visa applicant has a permanent job in Jaffna.  He is working at the temple.  He was working at the Eye Centre but left there about one and a half years ago to work at the temple. His job at the temple pays more than his Eye Centre job.  He is a cashier and store keeper at the temple.

    c.The review applicant last visited Jaffna in 2014.  She stayed there one month. The situation in Jaffna was quite smooth and peaceful while she was there.  Her brother does not have any problems there. He has no enemies in Sri Lanka.  He has no problems with the police. The police have given him a Clearance Certificate stating that they have no issue with him.  He has no problems with the army.  He is not required to report to the police or to the army.

    d.Their father is diabetic and has cholesterol problems and needs someone to look after him.  The visa applicant helps to look after him.  While his mother is in Australia he is cooking for his father and doing the shopping.

    e.The visa applicant lives with his parents in Jaffna.  The visa applicant looks after them and the household. He does the shopping and gets the medicines for his parents and makes sure they take their medicine when they are supposed to.  He helps their mother look after the house.

    f.He also looks after his brother’s shop and the review applicant’s house in Jaffna.  He collects the rents and does maintenance for the family properties in Jaffna.

    g.The review applicant wants her mother to continue to visit her in Australia. She would also like her father to visit her when he is well enough to travel again. Her husband plans to sponsor his mother to visit for the first birthday of their baby.

    h.They are able to lodge a security bond for the visa applicant’s visit.  It will be difficult for them if they lose a large amount of money because they bought a small house three years ago and are paying off the mortgage. They plan to buy a bigger house in the future.

    i.She, her brother in Australia, and the visa applicant all own one property each in Jaffna. The properties are  adjoining and make up the one complex of houses and shops. The visa applicant maintains all these and collects the rents from them.

    j.The visa applicant wants to come to Australia for one month.

12. The following is a summary of the information provided by the visa applicant at the hearing:

    a.He lives with his parents in Jaffna.

    b.He now has a permanent job at the temple where he works at the counter as a clerk, selling entry tickets. He also prepares the accounts to give to the Temple treasurer. He supplies the priests with the things they need. He works there seven days a week.  He started working there in January 2018. Before this he worked at the Eye Centre.

    c.He does not have any problems in Jaffna. He has a Police Clearance form. He has no problems with the police or army. He does not have to report to anyone. He has no enemies. There are no court cases against him.

    d.His source of income is his work salary and rents from his grocery shop and other family properties.

    e.He looks after his mother and father. His father is sick, he has diabetes and high cholesterol. He gives his father his medication and cooks for his father when his mother is away. When his mother is home the visa applicant helps with the household work.  He does the shopping and sweeps the yards and dusts the furniture.

    f.The visa applicant also looks after the family properties. He collects the rents and does maintenance and repairs.  He can submit the rental contracts for the properties.

    Post-Hearing Submission

13. On 7 March 2019 the applicants submitted copies of the following documents:

    i.Lease Agreement over the applicants’ shop in Jaffna (original language and English Translation).

    ii.Evidence of properties, a house and shop, owned by the review applicant in Jaffna.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

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

16. 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)).

17. The visa applicant has not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by him.

18. 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.

19. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The visa applicant wishes to stay in Australia for one month. There is no indication before the Tribunal that he intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied he intends to comply with condition 8101.

20. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied he intends to comply with Condition 8201.

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

22. The Tribunal accepts that the visa applicant is a single man from Jaffna in Sri Lanka. The Tribunal accepts the visa applicant’s parents also reside with him in Jaffna. The Tribunal considers that the presence of the visa applicant’s parents represents significant incentive for him to return to Sri Lanka after a short stay in Australia.

23. The Tribunal accepts that the visa applicant has stable and valued income from his work in a local Temple.  The Tribunal accepts the visa applicant has responsibilities in Sri Lanka for care and assistance to his parents. The Tribunal also accepts he is responsible for the family properties in Jaffna.  The Tribunal considers that the visa applicant’s work and obligations in Sri Lanka are further incentives for him to return there after a visit to Australia.

24. The Tribunal notes that the applicants’ mother has travelled to Australia and complied with her visa conditions according to the evidence before the Tribunal. The Tribunal gives substantial weight to the good migration history of the review applicant and the applicants’ mother in Australia.  The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to her family and relatives’ immigration compliance in Australia. 

25. The review applicant has expressed a willingness to lodge a security bond for the visa applicant’s visit to Australia. The Tribunal accepts that the risk of losing a large sum of money will further motivate the applicants to ensure the visa applicant complies with his visa conditions.

26. The Tribunal notes the review applicant’s wish to sponsor her parents to continue to visit her in Australia in the future.  The Tribunal considers this further motivation for her to ensure the visa applicant does not breach any of his visa conditions and that he departs Australia before the expiry of his visa. 

27. 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

28. 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.

    Melissa McAdam
    Member