Prasad (Migration)

[2023] AATA 2745

Prasad (Migration) [2023] AATA 2745 (9 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kesho Prasad

VISA APPLICANT:  Mr Dinesh Prasad

REPRESENTATIVE:  Mr Bilal Amani

CASE NUMBER:  2203464

HOME AFFAIRS REFERENCE(S):          BCC2022/429192

MEMBER:Naomi Schmitz

DATE:9 August 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 09 August 2023 at 12:01pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – visiting parents – genuine temporary entrant and compliance with conditions – inconsistent evidence of travel plans and finances and no updated financial records provided – previous compliant travel – employment, wife and children in home country and elderly parents in Australia – country information – general economic conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(4)(a), 360(1)
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 2 March 2022 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 23 February 2022. 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 visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

5. On 11 March 2022, the review applicant applied to the Tribunal for a review of the refusal decision and provided a copy of the delegate’s decision record to the Tribunal.

6. On 30 June 2023, the Tribunal invited the applicant under s 360(1) of the Act to appear at a Tribunal hearing by Microsoft Teams video-link commencing at 9:30 am (VIC time) on 17 July 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

7. In support of the application for review, the review applicant provided the following:

   a.Motor Vehicle Accident Compensation letter (coverage from 22 May 2023 until 22 May 2024);

   b.Visa applicant’s BSP Financial Group Limited term deposit of FJD11,980.75 (equivalent to AUD8,000.00) for a period of 730 days commencing 28 June 2021;

   c.Letter from BSP Financial Group (the fund) to the visa applicant dated 22 May 2023 advising of the term deposit maturity date (i.e. 28 June 2023). Visa applicant instructed to advise the fund whether to ‘renew… for a further term or opt to withdraw in part or the full sum’;

   d.Electricity bill dated 29 January 2020 in the visa applicant’s name (electricity usage from 29 December 2019 until 28 January 2020);

   e.Letter from the visa applicant’s employer ‘Asalat Khan Transport’ dated 7 July 2023 confirming the visa applicant has worked for the company for three and a half years and wishes to visit his family members for one month and will ‘resume his job’ when he returns;

   f.The visa applicant’s birth certificate;

   g.The visa applicant’s marriage certificate (married 20 September 2010); and

   h.The passports of the visa applicant, the visa applicant’s two children and wife.

8. The review applicant appeared before the Tribunal on 17 July 2023 to give evidence and present arguments by video. The Tribunal also received oral evidence from the visa applicant who gave evidence via telephone from Fiji. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

9. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

10. Post hearing, the review applicant filed his ANZ bank statement dated 17 July 2023 showing an account balance of $5,956.00.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Prior to the commencement of the visa applicant’s evidence, the Tribunal Member sought clarification regarding the documents in [7]. The visa applicant confirmed [7a] was the visa applicant’s motor vehicle insurance policy which was submitted as proof of motor vehicle ownership. In relation to the term deposit in [7b], the Tribunal Member asked whether the monies had been re-invested or withdrawn, noting the maturity date was 28 June 2023. The visa applicant claimed that it had been ‘automatically renewed’. No evidence was provided in support. The Tribunal further notes this is inconsistent with the account terms in [7c] which required the visa applicant to provide instructions to the fund. The Tribunal Member asked the visa applicant what the electricity account in [7d] purported to represent. The visa applicant claimed property ownership. The Tribunal Member indicated that whilst she accepted the visa applicant was the account holder of an electricity account, she did not accept the electricity account as credible or reliable evidence of property ownership such as a certificate of title, rates notice or mortgage document. The visa applicant replied this was the bill that came to his house.

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the visa applicant was subject; whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

14. The visa applicant is a 52-year-old citizen of Fiji, who currently resides in Nadi, Fiji. In the present case, the visa applicant seeks the visa for the purposes of his father who is an Australian citizen. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221; and cl 600.222.

15. At the time of application, the visa applicant requested a Visitor visa for up to three months, with a planned arrival date of 13 March 2022 and a departure date of 13 June 2022. At hearing, the visa applicant gave evidence that he would stay for one month as he had during done during his two previous visits to Australia. The Tribunal Member put to the visa applicant that in a letter submitted by the review applicant to the Department, that the review applicant had stated he wanted the visa applicant to stay for three months, which was inconsistent with the visa applicant’s oral evidence at hearing. The visa applicant replied that he was working and did not think he could get any more than one month off work. The review applicant gave evidence that his son would stay for only one month and then return to Fiji. The visa applicant confirmed that he would travel alone, with his wife and two children remaining in Fiji.

16. The visa application indicated that the visa applicant would be financially supported for ‘all costs’ by ‘other person’ and referred to the attached bank statement of the ‘sponsor’. In support a bank statement in the joint names of the visa applicant and review applicant was provided with a balance of FJD2,513 (equivalent on AUD1,688.91) on 17 January 2022.

17. At hearing, the Tribunal Member asked the visa applicant how he would finance his stay and whether he had any evidence in support. The visa applicant responded, ‘I will stay for a month’. The Tribunal Member indicated that this did not answer the Tribunal’s question and repeated the question. The visa applicant then stated ‘I will bring my money and look after my own expenses’. The Tribunal Member raised with the visa applicant that in his visa application, he declared that his stay would be funded by his father, the review applicant, and that his oral evidence before the Tribunal was inconsistent with his previous declarations. The visa applicant responded that ‘I will make arrangements. I will wear those costs. I will tour Australia. My father will bear some expenses’. The Tribunal Member indicated that the Tribunal had no updated evidence of the visa applicant’s personal finances and asked where he would get the money from noting the visa applicant’s claims that he had reinvested his term deposit. The Tribunal Member also indicated there was no updated financial evidence from the review applicant. The visa applicant replied there was proof he was working.

18. The Tribunal Member also asked the review applicant how the visa applicant would finance his stay in Australia. The review applicant replied, ‘I will look after all his costs’. The Tribunal Member raised with the review applicant that there was no updated financial evidence of the review applicant’s finances. The review applicant replied that he was an ‘Indian priest’ and that ‘people give us donation which I pay for my living’. The Tribunal Member indicated that reliance on church donations did not provide the Tribunal with confidence and that his evidence did not adequately address the Tribunal’s concerns regarding how the visa applicant would fund his stay. The Tribunal Member further explained it was not the role of the Tribunal to present the review applicant’s case for him, noting that he was legally represented, and the fact that the visa had been refused one year and four months prior to the hearing and therefore he had had ample time and opportunity to collate and submit evidence in support.

19. 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)). The Tribunal Member stated that she had obtained the visa applicant’s travel movement records which disclosed that the visa applicant had travelled previously twice to Australia on Visitor (Subclass 600) visas and complied with the conditions of the substantive visas. This included between 11 February 2014 until 9 March 2014 and 8 May 2015 until 14 June 2015. The visa applicant confirmed that these dates were correct.

20. 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.

21. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201 given he has applied for the Visitor visa for the purposes of visiting family and the short duration of the visa applicant’s proposed stay. The Tribunal has also had regard to the financial evidence submitted post hearing by the review applicant and accepts that the visa applicant will be financially supported and accommodated by the review applicant and his wife, the visa applicant’s mother. 

22. The Tribunal has considered all other relevant matters (cl 600.211(c)). Firstly, the Tribunal has considered the purpose of the visit. The visa applicant and review applicant both gave evidence that the visa applicant wished to visit Australia to see his father and mother, who are both aged in their eighties. This appears to be a valid reason to apply for a Visitor visa to Australia.

23. Secondly, the Tribunal Member enquired as to what travel, if any, the visa applicant has undertaken outside of Fiji. The visa applicant confirmed he has not undertaken any other international travel save for his two previous visits to Australia referred to in [19] above. Consequently, there is no record against which any weight can be given as to whether the visa applicant has complied with conditions on previously held visas.

24. Thirdly, the Tribunal has taken into account the visa applicant’s incentives to return to Fiji at the end of his proposed visit. The visa applicant stated that he has a wife who he has been married to for approximately 13 years and two children aged 12 and nine years respectively. The visa applicant also gave evidence of having a brother and a sister who reside in Fiji (his sister residing in another province), with the visa applicant and his family residing with his brother. The visa applicant stated he has a sister who resides in Canada. In contrast, the only family in Australia are the visa applicant’s parents and a cousin. The Tribunal Member noted from the visa applicant’s marriage certificate that he had been previously married and was divorced and asked whether there were any children from that marriage. The visa applicant confirmed that he has a daughter who resides in Fiji, but that he has had no contact with her since his divorce. The visa applicant also relied on his ownership of a motor vehicle. He stated that although he did not have any property ‘right now’ that it was ‘being processed’ and would be in his name shortly. Information submitted by the visa applicant shows that he has worked as a truck driver for a transportation business. At hearing the visa applicant claimed he was currently working as an excavator operator, earning FJD400 (equivalent to AUD274) per week. The visa applicant confirmed he was of the Hindi faith.

25. The review applicant was similarly asked what incentives the visa applicant had to return to Fiji. The review applicant referred to the visa applicant’s employment and his family, including his wife and children.

26. The Tribunal Member explained that as a relevant factor pursuant to cl 600.211(c), that the Tribunal may consider the situation of a visa applicant’s home country, Fiji, as this may appear to be a disincentive to return. The Tribunal Member referred to the Department of Foreign Affairs and Trade (DFAT) Country Information Report which refers to the COVID-19 pandemic causing significant disruption to the Fijian economy. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. In 2019 approximately 30 per cent of the population was living in poverty, with money remittances (money from external family groups and associated welfare) forming an important part of the Fijian economy. [1]  The Tribunal Member contrasted Fiji’s economy with Australia’s, which has a much stronger economy and asked in light of these differences, why this would not act as a disincentive to return to Fiji.

    [1] Department of Foreign Affairs and Trade Country Information Report – Fiji dated 20 May 2022

27. The visa applicant responded, ‘I will definitely come back…I keep saying and maintain I will be there (Australia) for a month’. The Tribunal Member indicated that the visa applicant had not engaged with the economic information. The visa applicant responded that as he was leaving family behind, he had a ‘very strong reason’ to return. The visa applicant again re-iterated he would only visit for one month.

28. The same country information was put to the review applicant who responded, ‘He will definitely go back because he has children there…Every day the situation (economic situation) is always the same. It’s always bad’. 

29. The Tribunal has considered all matters carefully. The Tribunal accepts that the visa applicant has a valid reason to visit Australia to see his father and mother. Whilst the Tribunal accepts that the visa applicant has previously travelled twice to Australia and substantially complied with the conditions of his two previous visas, due to this travel being approximately nine years ago and given the lack of financial evidence submitted by the visa applicant regarding his financial standing and the deterioration of Fiji’s economy, the Tribunal therefore places some weight on the visa applicant’s previous compliance. The visa applicant has not undertaken any other travel from which the Tribunal can place positive weight in the visa applicant’s favour.

30. Whilst the Tribunal accepts that the visa applicant is employed and has a wife and children in Fiji, after considering the overall evidence, the Tribunal is not satisfied that they would constitute a sufficient incentive to return. The visa applicant submitted no updated evidence regarding his personal financial circumstances, including banking records regarding his salary and savings. Whilst the visa applicant claimed that he has reinvested his term deposit, there is no independent evidence such as a financial statement or letter from the fund to corroborate these claims. The Tribunal further notes that the visa applicant does not own any property, later conceding this in his evidence. The Tribunal also places limited weight on the visa applicant’s ownership of a motor vehicle given it could be easily transferred or sold. The visa applicant resides with his brother. Whilst the Tribunal acknowledges that the visa applicant has a sister who resides in Fiji, as she resides in another province some distance from the visa applicant, the Tribunal does not regard her as serving as a strong incentive to return. The Tribunal further notes that the visa applicant equally has a family network in Australia, including his parents and cousin.

31. The Tribunal’s concerns are further heightened by the deterioration of Fiji’s economy, which has declined since the visa applicant’s last two visits to Australia and in the Tribunal’s view  may act as a strong disincentive to return. According to country information, GDP growth from 2006 to 2011 averaged 0.45 per cent with GDP growth rising from 1.9 per cent in 2011 to a forecast of 3.8 per cent for 2014, well above the negative 15.7 per cent recorded in 2020. Poverty has also increased significantly from approximately 23 per cent in 2009 to 30 per cent of the population in 2020.[2]

    [2] Department of Foreign Affairs and Trade Country Information Report – Fiji dated 14 April 2015 and s 359A(4)(a) of the Act

32. Given the paucity of the evidence regarding the visa applicant’s financial circumstances and the difficult economic conditions in Fiji, the visa applicant may very well consider that he has better prospects of living in Australia to financially support himself and his family. 

33. 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.

    DECISION

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

    Naomi Schmitz
    Member