Nithiyapraba (Migration)

[2021] AATA 4253

Nithiyapraba (Migration) [2021] AATA 4253 (3 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sanjayan Nithiyapraba

VISA APPLICANT:  Miss Tharshini Harithasan

CASE NUMBER:  1915523

HOME AFFAIRS REFERENCE(S):          BCC2019/2392270

MEMBER:Naomi Schmitz

DATE:3 September 2021

PLACE OF DECISION:  Melbourne

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 03 September 2021 at 12:51pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – stable and on-going employment working for a government department – incentives to return to country of residence – substantial family network in Sri Lanka – security situation in Sri Lanka – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

CASES
Khanam v Minister for Immigration & Citizenship [2009] FCA 966

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 16 May 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 May 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 13 August 2021 via video to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband Mr Sanjayan. The Tribunal also received oral evidence from the visa applicant by telephone from Sir Lanka. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Indian) and English languages.

6. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the visa applicant who is currently living in Sir Lanka and only able to provide evidence ‘virtually’. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were expressed by the review applicant or visa applicant about the hearing being conducted in this manner, nor was there any indication that the review applicant or visa applicant had any difficulty in understanding or responding to the questions being put during the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Prior to the allocation of the matter, the review applicant supplied to the Tribunal the following; an undated letter from the review applicant regarding the application for review, various financial documentation including payslips and banks statements evidencing the review applicant and review applicant’s husband’s income and savings and a letter from the visa applicant’s employer regarding leave approval for a period of two months.

9. After this matter was constituted to the Tribunal Member, on 9 August 2021, the Tribunal wrote to the review applicant and requested updated information and records about the visa applicant’s employment including; a copy of the visa applicant’s passport ensuring that all passport country stamps are visible; an itemised list of countries the visa applicant has travelled to, including the arrival and departure dates; evidence of the visa applicant’s current employment including recent evidence of pay slips and taxation returns; any updated information and records about the visa applicant’s assets and financial situation including ownership of any property and significant assets such as money in bank accounts and approximate property valuations; evidence of the visa applicant’s mother’s dependency on the visa applicant such as the visa applicant meeting her mother’s financial expenses; and any other information relevant to the visa applicant’s activities or commitments or relationships in her home country.

10. In response on 12 August 2021, the review applicant provided 16 documents including: a photograph of the visa applicant’s passport depicting various country stamps and travel visas held by the visa applicant; an itemised list of countries the visa applicant has travelled to; the visa applicant’s recent pay slips including in May 2021 and June 2021; the visa applicant’s bank account activity statement; a marriage certificate evidencing the visa applicant married her husband Mr Kulendran Pahitharan on 30 August 2020; a birth certificate evidencing the visa applicant had recently given birth to a child on 23 June 2021 and a voter registration document evidencing that the visa applicant resides with her elderly mother in Trincomalee, Sir Lanka.

11. 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.

12. The visa applicant is a 32-year-old female Tamil who is a citizen of Sir Lanka. In the present case, the visa applicant seeks the visa for the purposes of visiting her sister who is an Australian citizen and resides in Melbourne, Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221.

13. The visa applicant requested a visitor visa for up to three months, with her planned arrival date being 25 May 2019 until 25 July 2019. In the original application the visa applicant explained the purpose of her visit was to visit her sister, to celebrate the visa applicant’s May birthday and to meet her nephew who the review applicant had since given birth to after migrating to Australia. The visa applicant planned to stay for a maximum of two months due to having a government job, which only enabled her to take two months leave which she had approved by her employer.

14. 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)).

15. In the present case, the visa applicant has not previously travelled to Australia. Consequently, there is no demonstrated compliance or non-compliance with previous visa conditions upon which the Tribunal can use to assess whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

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; and

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

17. The Tribunal is satisfied that the applicant intends to comply with conditions 8101 and 8201 given she has applied for a visitor visa for the purposes of visiting family and the short duration of the visit. The Tribunal is further satisfied that there is credible evidence to suggest she has stable and on-going employment working for a government department in Sir Lanka and given she expressed no desire to engage in employment in Australia. The Tribunal further accepts that she will be accommodated and supported by the review applicant and her husband while in Australia, who gave oral evidence and submitted financial documents in support. The visa applicant produced banking records and pay slips which show a consistent income and that she has adequate funds to support herself during her visit to Australia.

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

19. The visa applicant gave evidence that she currently resides in Trincomalee, Sir Lanka. She currently resides with her husband, infant child and her mother in her mother’s home. The purpose of her visit is to visit her sister, her brother-in-law and her nephew. She gave evidence that she is yet to meet her nephew who was born after her sister migrated to Australia. She stated she would only have capacity to stay for two months, due to her permanent and ongoing government job in Sir Lanka and her 62-year-old mother who she cares for and who suffers from multiple health issues. She also gave evidence that she financially supports her mother who no longer works and is not in receipt of any government support or pension. The Tribunal enquired given the lapse of time, who she proposed to travel with. The visa applicant stated she would visit with her baby, without her husband, due to him having a government job and that she would return home to him and her mother after her visit. The visa applicant’s child does not have a visa application on foot; however, the visa applicant still intends to travel with her child if granted a visitor visa. The Tribunal accepts the visa applicant’s evidence and accepts this is a valid reason to apply or a visitor visa to Australia.

20. The Tribunal enquired what incentives the visa applicant had to return to Sir Lanka. The visa applicant stated she is married, marrying in August 2020, having known her husband for three years. She stated her husband has stable employment working as a developmental officer for a government department. The Tribunal accepts the visa applicant’s evidence which is also corroborated by the particulars contained in the certified marriage certificate.

21. Both the visa applicant and review applicant gave consistent evidence that the visa applicant has a significant family network who reside in Trincomalee, Sir Lanka, including aunties and uncles from both their parents’ sides. The visa applicant also has a sister-in-law (her husband’s sister) who resides in Trincomalee. The visa applicant stated her husband’s parents and brother live in Jaffna, Sir Lanka, some distance from Trincomalee. The review applicant is the only family member who resides in Australia. The review applicant gave evidence that her mother is a widower, with their father dying in 1990. The visa applicant shares a very close relationship with their mother, who is reliant on the visa applicant both financially and for care giving and support. The Tribunal accepts the visa applicant and review applicant’s evidence and is satisfied that there is a substantial family network in Sir Lanka, in particular Trincomalee, which would provide an incentive for the visa applicant to return after her visit to Australia.

22. Both the visa applicant and review applicant gave consistent evidence that the visa applicant has had stable employment since July 2016, working in the public service undertaking clerical and administrative work as a Manager of Services Assistant. Financial evidence was submitted in support, including two recent pay slips showing the visa applicant earnt $40,400 Sir Lankan rupee per month, equivalent to $739.00 AUD. Various payslips during 2019 had also been provided. The Tribunal understands this to be an ‘above average’ salary in Sir Lanka. The visa applicant stated she is currently on maternity leave for six months until December 2021 and in receipt of her full salary. The review applicant and her husband emphasised to the Tribunal that the visa applicant had ‘proven herself’ since lodging her visa application. In a letter to the Tribunal the review applicant explained that in order to be made a permanent government employee with additional benefits, the visa applicant would have to return to Sir Lanka so she had three years continuous employment, which the visa applicant would not jeopardise and which the visa applicant has achieved. The review applicant and her husband further stated that the visa applicant has a permanent job with the opportunity for career progression and enjoys a comfortable and good life in Sir Lanka and has great satisfaction. The Tribunal accepts the visa applicant, review applicant and the review applicants’ husband’s evidence which is corroborated by her solid work record and consistent income.

23. The visa applicant does not have significant assets. The visa applicant has approximately $34,691 Sir Lankan rupee equivalent to $240.00 AUD and a two-wheeler motorcycle. The Tribunal places limited weight on these assets as incentives to return, due to the money being transferrable or easily withdrawn and the motorcycle being disposable. The visa applicant does not own any property, but stands to inherit half of her mother’s house. The Tribunal accepts that she will inherit half of her mother’s property and places some weight on this as an incentive to return.

24. The visa applicant gave oral evidence and provided copies of her passport depicting country stamps and various visas evidencing previous travel to the following countries:

    (a)India in 2015 on two separate occasions including one month and five days;

    (b)Singapore on three separate occasions including in 2013 for two days, 2015 for two days and later in 2015 for six days;

    (c)Malaysia on one occasion in 2013 for five days; and

    (d)Indonesia on one occasion in 2015 for two days.

25. Given the closeness of these countries to Sir Lanka and the relative short durations, the Tribunal places some weight on the visa applicant’s compliance with her visa conditions to these countries.

26. The Tribunal explained that as a relevant factor pursuant to cl 600.211(c), that it needs to consider the situation of a visa applicant’s home country, Sir Lanka, as this may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report, which states Sir Lanka has experienced political instability and paralysis since the civil war including as recently as 2018 during the constitutional crisis, where President Sirisena was dismissed and replaced with former President Rajapaksa. The report refers to Sir Lanka having an uncertain political outlook. There are also ongoing tensions between the Sinhalese and Tamil minority communities. The Tribunal notes the visa applicant is Tamil and that they have historically been a persecuted minority. Although the security situation in Sir Lanka, particularly the north east has improved significantly since the end of the civil war in May 2009, there is heightened security concerns following the Easter Sunday terrorism attacks in 21 April 2019, with the Islamic State terrorist group carrying out co-ordinated terrorist attacks against in the Western Province and Eastern Province where more than 250 people were killed and 490 injured. Furthermore, during and after the civil the military appropriated substantial amounts of private and state held land in the Northern and Eastern provinces war with not all appropriated land returned.[1]

    [1] Department of Foreign Affairs and Trade Country Information Report – Sir Lanka dated 4 November 2019

27. The visa applicant acknowledged that there had been problems in Sir Lanka, but that they were not relevant to her hometown of Trincomalee where she ‘has enjoyed a normal life’ and has resided since birth for 32 years. The visa applicant also stated that Trincomalee is a very multicultural city and a ‘Singhalese’ area. The review applicant and her husband similarly gave evidence that the country information was more applicable to the north of Sir Lanka, particularly Jaffna where 90% of Tamils reside. They highlighted that Trincomalee is a very multicultural city where the Singhalese and Tamils have lived harmoniously together during and after the civil war and that there are no political or racial issues there. The review applicant’s husband also stated that the war did not affect Trincomalee and that the visa applicant’s family did not have land compulsorily acquired by the government.

28. The Tribunal has had regard to the decision in Khanam v Minister for Immigration & Citizenship [2009] FCA 966, to the effect that the Tribunal must consider the particular circumstances of the visa applicant, rather than make broad assumptions based on information regarding a person of the same nationality or social group. The Tribunal accepts the visa applicant, review applicant and her husband’s evidence and is of the view that the country information was largely irrelevant to the visa applicant and therefore places limited weight on it as a disincentive to return to Sir Lanka. The review applicant and her husband’s evidence of Trincomalee being a multicultural city is supported by the DFAT report which states there is a large concentration of Muslims, followed by Buddhist, Hindu and Christians in Trincomalee.

29. The visa applicant gave evidence that she did not have any well-founded fear of any form of persecution in Sir Lanka due to her race, religion, nationality, membership of a particular social group or political opinion. She stated that the civil war ended in May 2009, more than 12 years ago and that there are no issues in Trincomalee. The Tribunal accepts her evidence.

30. The Tribunal has considered all matters carefully. There are a number of factors in the visa applicant’s favour, including her having a valid reason to visit Australia. She has limited family in Australia, namely her sister. The majority of her family reside in Trincomalee Sir Lanka, in particular her mother who is dependent on her financially and for care and support. She is married with a husband who reside resides in Sir Lanka and enjoys a stable government job. He also has family who reside in Trincomalee and Jaffna Sir Lanka. The visa applicant has a secure and permanent government job which she has had for over five years, which she receives a steady income from, including maternity leave which she is currently on. The visa applicant also stands to inherit half of her mother’s property and enjoys a comfortable and happy life in Sir Lanka. The visa applicant has also travelled to various countries in Asia and India and complied with her migration conditions which as outlined in paragraph [25] the Tribunal has given some weight to. The Tribunal also found the visa applicant, review applicant and her husband to be credible and honest witnesses, who provided fulsome evidence to the Tribunal. The country information put to the visa applicant was largely irrelevant which the Tribunal does not place any weight on.

31. 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

1. 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.

   Naomi Schmitz
   Member