Parameswaran (Migration)

[2019] AATA 2104

Parameswaran (Migration) [2019] AATA 2104 (12 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kanthymathy Parameswaran

VISA APPLICANT:  Ms Arthika Thayaparan

CASE NUMBER:  1835636

DIBP REFERENCE(S):  BCC2018/4569978

MEMBER:Rachel Westaway

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 April 2019 at 11:35 am (VIC time)

DATE OF WRITTEN RECORD:                8 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets clause 600.211 of Schedule 2 to the Regulations.

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – family visit and tour – time sensitive and compelling reasons for visiting Australia – review applicant’s child’s health – incentives for returning to home country – work, family and study commitments – past compliance during sponsored visits – decision under review remitted

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 November 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The review applicant is Mrs Kanthymathy Parameswaran and the visa applicant is Ms Artiker Syataran.  The decision is for a Subclass 600 (Visitor) visa, in the sponsored family stream.

4. The visa applicant applied for the visa on 18 October 2018.  The visa applicant is a 23-year-old female from Sri Lanka. The visa applicant is the niece of the review applicant.  The visa applicant was intending to come to Australia to be with family and to visit and tour, which is the purposes for which a visa in the sponsored family stream may be granted. 

5. The delegate of the Minister refused to grant the visa, determining that the visa applicant did not meet clause 600.211 of the Migration Regulations because the visa applicant did not satisfy the delegate that she genuinely intended to stay temporarily in Australia, for the purposes for which the visa is granted.

6. The tribunal has had the benefit of an extended discussion obtaining oral evidence with both the review applicant and the visa applicant, where strong and compelling evidence has been presented for the purposes of the visit.  Also presented at hearing was evidence that another family member has previously visited Australia and has returned to Sir Lanka.  Compelling and consistent oral evidence has been provided, pertaining to the visa applicant and her ties to Sri Lanka, as well as the very reasonable and clear explanation as to why she would want to come to Australia. 

7. Both the review applicant and the visa applicant confirmed the following information.  The visa applicant is a 23-year-old Sri Lankan female, who has undertaken a beauty course, as well as a degree in telecommunications engineering and up until recently, when she was preparing to come to Australia, has been enrolled to commence a Master’s degree in telecommunications engineering.  She lives with her parents and works part-time in her mother's shop and her father is employed. 

8. She has met her aunt in Australia, who is from a Sri Lankan background, and who has lived in Australia for 14 years.  Her aunt is the review applicant.  They met in August in 2018, in Sri Lanka, when the review applicant and her family visited Sri Lanka.  In November of 2018, the review applicant's youngest son, who is six years of age, was diagnosed with a serious form of cancer and is undergoing debilitating chemotherapy.  The review applicant has her husband and three sons in Australia, but no other family members or support, and given the fact that her two youngest children are quite young, requires two adults to support the children and her youngest one in hospital.  The review applicant does not work and has stated that she takes medication for depression, of which she is experiencing at present.  The review applicant's husband is employed, but has not been able to work, because he has been caring for his son in hospital.

9. The visa applicant would like to come to Australia for between three to five months, to assist the family and stay with her aunt, while her cousin is going through chemotherapy treatment.

10. The tribunal accepts that the reason for the visa applicant wanting to come to Australia is legitimate, time sensitive and compelling.  The tribunal has spoken to both the visa applicant and the review applicant about her intentions in Australia should she come and her reasons for returning to Sri Lanka.  She has explained her commitment to her studies.  She has also obtained leave for her Master's degree however, this is only until April of next year and she has explained that this would be a temporary visit, because her life is in Sri Lanka, her family are in Sri Lanka and when she finishes her course, her family would like her to settle and marry in Sri Lanka. 

11. The tribunal has considered whether the visa applicant would comply with the conditions associated with a visitor visa.  Given the serious and compelling reasons pertaining to the review applicant's son's health condition, it is unlikely that the visa applicant would want to work in Australia, because there is such a compelling need to support the family.  Furthermore, the visa applicant's English is limited. 

12. The tribunal has considered whether the applicant would want to study or train for more than three months in Australia and for the same reasons that the tribunal believes that the applicant would not work in Australia, the tribunal finds that the applicant would not want to study or train for more than three months in Australia. 

13. The Tribunal accepts that the review applicant’s child has been diagnosed with cancer and is undergoing treatment. The Tribunal accepts that the visa applicant wants to come to Australia to assist the family whilst their son is experiencing the debilitating treatment and his family is struggling to do day to day tasks.  For these reasons the visa applicant would like to come to Australia, and the Tribunal accepts that she has an intention to return to Sri Lanka given her work, family and study commitments, and this is strengthen by the fact that the review applicant's mother has previously visited Australia from Sri Lanka and not overstayed her visa or attempted to apply for another one. The tribunal finds that the applicant would not remain in Australia after the end of the permitted stay, based on the information before it. The applicant is aware that she would not be entitled to a substantive visa, other than a protection visa and both the visa applicant and the review applicant provided no reasons as to why the visa applicant could not return back to Sri Lanka. 

14. Given the oral evidence and written material provided by the review applicant and the visa applicant and all other relevant matters, including the medical details about the review applicant's son, the tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia, for the purposes for which the visa is granted and finds that the requirements of clause 600.211 are met.

    DECISION

15. The Tribunal remits the decision under review with the direction that the applicant meets clause 600.211 of Schedule 2 to the Regulations.

    Rachel Westaway
    Senior Member