Raj (Migration)

[2023] AATA 3523

Raj (Migration) [2023] AATA 3523 (28 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Pooja Priya  Raj

VISA APPLICANT:  Mr Rajesh  Raj

CASE NUMBER:  2309410

HOME AFFAIRS REFERENCE(S):          BCC2023/2182780

MEMBER:Mara Moustafine

DATE:28 September 2023

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 28 September 2023 at 11:15am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visiting his family – incorrect information being provided in the visa applicant’s Visitor visa application form regarding a previous visa refusal – an ‘honest mistake’ on the part of the visa applicant’s daughter – applicant complied with conditions of last visa – visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 21 April 2023 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, Rajesh  Raj, applied for the visa on 7 April 1970. 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

4. Based on the visa application, the visa applicant is a 53 year old citizen of Fiji, living in Nadi. He is seeking the visa for up to 3 months for a family visit to see his daughter, the review applicant, and son-in-law. The visa applicant is self-employed as a carpenter since 10 January 2023 and is married. The applicant will provide ‘financial funds’ for his visit while his daughter and son-in-law will provide accommodation and cover other cost for his stay in Australia. The applicant has previously travelled to Australia and has never been refused a visa to Australia.

5. Documents submitted to the Department in support of the visa application included:

   ·an invitation letter from the visa applicant’s daughter and son in law 30 March 2023 stating they wished the applicant to attend his first grandson’s first birthday on 24 September 2023 and for a short stay in Sydney. They undertook to support him financially while he was in Australia and to accommodate him in their three bedroom property, which they owned.

   ·a letter from the applicant’s wife stating that she gave her permission for the applicant to travel to Sydney Australia for a short stay to attend their grandchild’s first birthday and spend time with his family, noting that her husband, who was self-employed would return on time as he was the breadwinner, supporting her and their youngest daughter in year 12.

   ·The visa applicant’s BRED Bank statement for the period 1 October 2022 to 20 February 2023, with a closing balance of FJD 50,152.56, documents indicating a valuation of the applicant’s property in Nadi at $300,000 on 21 February 2023.

   ·Bio data pages of the review applicant’s Fiji Passport and her NSW Driver Licence and confirmation of the review applicant’s Commonwealth Bank account balance of  $17,000.00 on 5 April 2023.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because he was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose of the visa. The delegate specifically noted that in the Visa History declaration section of the application form the visa applicant responded “no”, when asked whether he had ever had a visa for Australia or any other country refused or cancelled.  However, departmental records indicated that he had previously been refused for a Visitor visa to Australia. The delegate found that this indicated that the applicant did not understand the importance of providing truthful information, casting doubt on his credibility relating to your overall circumstances and his claim to be genuinely entering Australia temporarily for the purpose stated.

   Evidence before the Tribunal

7. On 23 June 2023 the review applicant, Pooja Priya  Raj, applied to the Tribunal for a review of the delegate’s decision, a copy of which she provided to the Tribunal for the purposes of the review. The review applicant is an Australian permanent resident, aged 27, holding a BC100 partner visa. In response to a query from the Tribunal, the review applicant provided a copy of her birth certificate confirming that the visa applicant was her father.

8. The review applicant was assisted in relation to the review by a ‘community justice’ representative, Mr Andrew Singh. 

9. In support of the application, the representative provided to the Tribunal a statutory declaration from the visa applicant dated 16 August 2023, in which he recounted his personal background and his family’s and his own migration history in Australia dating back to the late 1980s and early 1990s. This included that:

   a.in 1994 the applicant had changed his name from Rakesh to Rajesh by deed poll in Fiji after being accused of a minor offence (goods in custody) while in Australia out of fear that it would adversely affect his chances of migration to Australia;

   b.with his parents and all his siblings were living in Australia, in 2001 he sought to migrate to Australia through a remaining relative visa but abandoned this and returned to Fiji in 2004;

   c.in May 2018 his parents through his sister Maureen applied as sponsors for a Visitor visa for him and his wife. While his wife’s visa was approved, his visa was refused. This refusal was sent to his sister.

   d.on 7 April 2023, his daughter Pooja applied for the Visitor visa for him but was unaware of the visa refusal in 2018. As a result the visa application, now subject of review, was refused by the delegate.   However, this was a genuine mistake on the part of his daughter.  

   e.he has not unlawfully overstayed a previous visa and always returned to Fiji and applied for further visas to enter Australia, mainly to visit his aging parents, both suffering from various health conditions.

   f.after the death of his son, who migrated to United States, he lost all interest in visiting his parents and daughter in Australia until his daughter gave birth to his first grandson in September 2022.

   g.he is remorseful about the events of the past (9.a refers) which happened a long time ago in his youth. He is totally rehabilitated, matured, married with children and a grandfather to his Australian born grandson.

   h.he has no reason not to return to Fiji after the expiry of his visitor visa. He is a self-employed businessman/carpenter and has recently acquired a long-term lease and is in the process of building townhouses for renting or sub-leasing on his property, recently valued for a significant amount by the local standard.

10. Relevant supporting documents provided include the visa applicant’s Fiji birth certificate; a letter from the Fiji Ministry of Justice dated 4 May 2023 confirming his name change by deed poll from RAKESH RAJ to RAJESH RAJ on 01 January 1994; biodata pages of his Fiji passport issued on 24 April 2015 and valid to 24 April 2028; his Fiji Driver Licence; Fiji birth certificates and Australia passports of his parents and siblings; notifications of refusal for applicant’s Visitor visa on 15 May 2018 and Visitor visa grant for his wife dated 23 May 2023; US death certificate of his son on 19 February 2022; iTaukei Land Trust Board official receipt for applicant’s residential lease rental dated 5 October 2022; Westate Consultants valuation of the property at $300,000 on 21 February 2023.

11. On 8 September 2023 the representative provided a statutory declaration from the review applicant dated 5 September 2023 in which she made the following relevant points:

    a.She is eldest child of the visa applicant and an Australian permanent resident. She migrated to Australia on 24 March 2017 following her marriage to Denzel Nand, an Australian permanent resident. They have an Australian born son, Jayzel Nand.

    b.She is employed full-time by Novo Shoes Pty Ltd and her husband is employed full-time by Woolworths. They jointly own a property mortgaged to Great Southern Bank.

    c.She has a younger sister, Risha Esha Raj (DOB 31/12/2005). Her elder brother, Rahul Ravnit Raj passed away on 19 February 2022 in the United States, which left her father ‘thoroughly distressed’.

    d.She made ‘an honest mistake’, by answering ‘no’ when her father’s Visitor visa application had been declined in 2018. She takes responsibility for the mistake and should have checked with the aunt who dealt with her father’s previous visa applications or with her father.

    e.Her father was ‘very depressed after the death of his son and thought a visit to Australia to spend time with his grandson would be good for him. She cannot take her son to spend time with her father in Fiji due to work commitments as she has recently returned to work after maternity leave and he is too young to travel.

    f.Her father’s application for a visa is for the ‘genuine purpose’ of seeing his grandson, as well as his aging parents, who cannot visit him in Fiji due to their poor health and financial issue as pensioners.

    g.It is a temporary visit as he has family in Fiji: her mother and younger sister, as well as his wife’s extended family. He recently secured a long-term lease, has built a new house and intends to build a townhouse to rent on his land. He is a carpenter and does a lot of the work himself to save labour costs. Her mother’s family will help her father with his building projects.

    h.He has substantively complied with terms and conditions of previous visas, never overstayed. He engaged migration agents to assist him in ‘getting the remaining relative visa at that time but they let him down or simply duped him.’

    i.She and her husband provide financial, accommodation and other material support during her father’s stay in Australia.

    j.Her mother has made multiple trips to Australia on visitor visas. The Department could impose conditions on a visa for her father, as has been done for her mother and her sister, who were both recently granted visas to visit for her son’s forthcoming first birthday celebration.

12. A joint statement from the visa applicant’s parents, dated 6 September 2023, was also provided in which they made the following relevant points:

    a.Their son’s Visitor visa was refused in 2018 because he changed his name. They wanted to appeal this decision but it was too late by the time they raised the funds. They don’t accept what their son did: at 20 years of age ‘he should have known better’ but he should not be punished for the rest of his life by never being allowed to come to Australia temporarily to visit his family.  He has learnt from past mistakes.

    b.He has visited Australia several times under his new name and never overstayed his visa or broken any visa condition. He will not breach a visa condition as it would ‘reflect badly’ on family members and ‘extended Fijian Indian family in Australia’

    a.The review applicant made a mistake on the 2023 visa application but did not do this deliberately. She did not check with their daughter Maureen who made the earlier application.

13. Relevant supporting documents provided include the review applicant’s Fiji birth certificate (DOB 24 February 1995); her Fiji marriage certificate (8 October 2016); her son’s NSW Birth Certificate (24 September 2022); evidence of her and her husband’s visa grant; AFP certificate showing the review applicant’s offence of Goods in Custody heard at Parramatta Local Court on 22 September 1993 for which he was fined $250; payslips for the review applicant and her husband; bank statements and loan repayment statement for review applicant and her husband; expired motor vehicle registrations; evidence of Visitor visa previous grant for review applicant’s wife and daughter; Centrelink and medical documents of the visa applicant’s parents.

14. A written submission from the representative dated 13 September 2023 was also provided, as well as other supporting documents.

15. The review applicant appeared before the Tribunal on 26 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s parents in person and from the visa applicant by telephone from Fiji.

16. The review and visa applicants gave generally consistent evidence about the circumstances leading to the incorrect information being provided in the visa applicant’s Visitor visa application form regarding a previous visa refusal, the purpose of his proposed visit to Australia and other matters relevant to the review. This was corroborated by the witness evidence of the visa applicant’s parents. The Tribunal accepts that the review applicant filled in the Visitor visa application form on behalf of her father and lodged it online, that she was not aware of him being refused a visa in 2018 and did not check with the review applicant or her aunt who had made the application and received the refusal letter at the time.

17. At the hearing the review applicant told the Tribunal that she had invited her father to visit Australia to participate in the first birthday celebration of her son, his first grandchild. This was particularly important as he was still grieving for the untimely death of his only son and for a while had lost interest in visiting family. A visit to Australia would also enable him to see his elderly parents and other siblings in Australia, where he had not been for some 20 years. She would pay for her father’s airfare and provide accommodation, although her father would also cover some expenses from his savings. The review applicant told the Tribunal she was ready to provide a bond as assurance that her father would depart Australia in the timeframe of any visa issued and subsequently provided a written statement to this effect.

18. In his oral evidence before the Tribunal. the visa applicant expressed regret for earlier mistakes he had made in Australia and said he did not know why his Visitor visa was refused in 2018.  He told the Tribunal he would like to stay for one or two months and then return to Fiji. Although his wife and younger daughter were currently visiting Sydney for his grandson’s birthday party, they lived with hm in Fiji where his daughter was in Form 6 at school. His wife’s family was also in Fiji. This was a major reason for his return to Fiji. Others were his property, which he was currently renovating and his carpentry business building houses. Although he had previously wanted to join his family in Australia, that was a long time ago. He was now 53 years old – too old to uproot his family and start over in Australia. He had established himself and had a good life in Fiji. He wished to be able to visit his family in Australia from time to time, as his wife was able to do. He had travelled internationally before COVID to New Zealand, Hong Kong and India.

19. The visa applicant’s parents affirmed that their son would not try to stay in Australia but return to Fiji, where he lived with his wife and student daughter whom he supported, noting that it would be hard for him to start a new life in Australia at this stage in his life and that they could not support him.      

20. Additional documents submitted to the Tribunal at and after the hearing included copies of the e-tickets of the visa applicant’s wife and daughter who are currently visiting Sydney to attend his grandson’s birthday celebration on 1 October 2023 indicating a departure date of 10 October 2023; the visa applicant’s bank statement indicating a balance of F$50,000 on 23 February 2023; and a statement from the review applicant confirming her readiness to provide a reasonable amount of bond as an assurance that the visa applicant will return to Fiji within the timeframe of his Visitor visa if granted.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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.

23. In the present case, the visa applicant seeks the visa for the purposes of visiting his family in Australia, including his eldest daughter, son-in-law, grandson and elderly parents. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

24. 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)).

25. There is no evidence before the Tribunal that the applicant has not complied with the conditions of his last substantive visa, the Visitor visa on which he entered Australia on 16 September 2023.

26. 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

27. Based on the documentary evidence and oral evidence of both the review and visa applicants at hearing, the Tribunal accepts that the review applicant has enough funds to cover her father’s airfares and will provide accommodation for him during his visit, while the visa applicant has sufficient funds for expenses. The Tribunal accepts the visa applicant’s written and oral 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.

28. The Tribunal has also considered all other relevant matters (cl 600.211(c)). With regard to the incorrect information being provided in the Visitor visa application about a previous visa refusal, the Tribunal accepts that this was an ‘honest mistake’ on the part of the visa applicant’s daughter who filled in the form online on his behalf. It accepts that this occurred because she was unaware of the correct information and had not checked with her father or the aunt who made his previous visa applications. The Tribunal does not share the delegate’s view that the error indicates that the visa applicant does not understand the importance of providing truthful information. The Tribunal is not satisfied that It casts doubt on the visa applicant’s credibility relating to his overall circumstances and his claim to be genuinely entering Australia for the purpose stated. This was the only ground identified by the delegate for refusing the visa currently under review.

1. Before the Tribunal, the visa applicant and his parents were candid in their evidence about the visa applicant’s past misdemeanours. The Tribunal accepts that these took place a very long time ago when the applicant was in his twenties, that he has shown remorse and has transformed his life since that time. Although the applicant previously sought to migrate to Australia as a last remaining relative, the Tribunal accepts that this was many years ago and that he is now settled with his wife and daughter in Fiji, where he has property and a business and does not wish to uproot his family and start over in Australia. The Tribunal accepts that he wishes to visit his family in Australia temporarily and will not seek to remain in Australia beyond the timeframe of any visa granted. The Tribunal notes that the visa applicant complied with the conditions of his previous Visitor visas, as have his wife and daughter. The Tribunal notes that the review applicant has expressed her readiness to provide a bond as a guarantee that her father will not remain in Australia beyond the timeframe of his any visa granted.

2. Having weighed the factors which would serve as an incentive for the visa applicant to return to Fiji at the end of his stay against those factors which might encourage him to remain, the Tribunal is satisfied that the visa applicant has a genuine intention to return to Fiji at the end of any permitted stay. 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

3. 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