Rajamanickam (Migration)

[2021] AATA 1570

Rajamanickam (Migration) [2021] AATA 1570 (13 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Villa Rajamanickam

CASE NUMBER:  1834860

DIBP REFERENCE(S):  BCC2018/4322087

MEMBER:Wendy Banfield

DATE:13 May 2021

PLACE OF DECISION:  Canberra

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

Statement made on 13 May 2021 at 2:07pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – adequate means of support – working in Australia in breach of conditions of current visa – no financial documents provided to department or tribunal – COVID-19 travel restrictions and conditions in home country – allegation of previous entries under different names, detection and removal given no weight – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 376
Migration Regulations 1994 (Cth), Schedule 2, cl 600.212

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 7 November 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 October 2018. 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 (the Regulations). Relevantly to this case, they include cl.600.212, which requires the visa applicant to satisfy the Minister that the visa applicant has adequate means, or access to adequate means, to support himself or herself during the period of the applicant’s intended stay in Australia.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.212 because he did not demonstrate he had adequate means, or access to adequate means to support himself in Australia.

   Background

5. The applicant is a citizen of Malaysia and is currently 32 years old. He came to Australia most recently on 13 July 2018 as the holder of an Electronic Travel Authority (ETA). Following receipt of an Application for a Visitor Short Stay Visa which is the subject of this review, the Department asked the applicant to provide further information, including evidence of funds, but he did not do so.

6. The applicant appeared before the Tribunal on 12 February 2021 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

8. The applicant submitted the following evidence in support of the application:

   ·     Department notification and decision record dated 7 November 2018

   ·     Representative’s submission dated 5 February 2021 with supporting documents

   ·     Representative’s submission dated 1 March 2021

   ·     Applicant’s statutory declaration dated 26 February 2021

   ·     Letter from Malaysia Ministry of Home Affairs dated 26 July 2013 (with English translation) regarding the applicant’s name change.

9. The Tribunal also considered the information submitted to the Department at the time of application including an Application for a Visitor Short Stay Visa and the applicant’s passport information.

   Non-disclosure certificate and s.359A letter

10. During the hearing the Tribunal discussed a s.376 non-disclosure certificate issued by the Department and the nature of the information it related to with the applicant. After the hearing, the Tribunal wrote to the applicant in accordance with s.359A of the Act inviting him to comment or respond to information. He was advised as follows:

    In conducting the review, we are required by the Migration Act 1958 (the Act) to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·The Department issued a non-disclosure certificate and notification under s.376 of the Act. You are invited to make submissions on the validity of the certificate;

    ·The nature of the information covered by the s.376 certificate relates to your entry into Australia in the past. The Department received an allegation from a member of the public that you have entered Australia under different names and that you have been detected by immigration and removed from Australia several times. You are invited to comment on the nature of the information the s.376 certificate refers to.

    The Tribunal considers a public interest reason is clearly specified on the face of the s.376 non-disclosure certificate and the certificate is valid. The information covered by the certificate is relevant to the application for review as it indicates you have provided false and misleading information about your identity and about your history in Australia in your Visitor visa application. This is because you only gave information about having been deported in 2008 after your protection visa application was refused.

    Depending on your comment or response, the Tribunal may decide to take the material covered by the s.376 certificate into account in its decision. If the Tribunal relies on the information outlined in making a decision, it may lead to the decision under review being affirmed.

11. The applicant responded to the information through a representative’s submission dated 1 March 2021. It was submitted the information regarding the allegation should be redacted to protect the source and disclosed to the applicant. The applicant’s representative advised it was not possible to comment on the validity of the non-disclosure certificate without being able to view the information it relates to. The applicant provided a statutory declaration in which he claimed he had first arrived in Australia in January 2008 and was deported in November 2008. While in Malaysia, the applicant said he converted from Hinduism to the Protestant religion and lawfully changed his name from Velayutham Rajamanickam to Villa Rajamanickam.

12. He stated he had travelled to Australia in August 2013 where he remained for two months before returning to Malaysia. He entered Australia again in October 2013, departed after a short period and travelled to Fiji, then attempted to re-enter Australia in December 2013 but was refused at the airport. According to the applicant he remained in Malaysia until 2018 when he applied for and was granted an ETA visa and arrived in Australia on 13 July 2018. He has remained onshore since then. Referring to the Tribunal’s question put to him at the hearing, the applicant denied ever having used another person’s passport to enter Australia.

13. The Tribunal considered the applicant’s response to the information put him. The Tribunal found the s.376 certificate to be valid. The redacted information was not provided to the applicant as requested because the Tribunal decided to place no weight on the allegation received by the Department. This decision was made on the grounds that no other information was available to corroborate the assertion in the allegation that the applicant had entered Australia under other names (other than his name prior to it being changed), had used another person’s passport or been deported other than as he disclosed.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether cl.600.212 is met, which requires the Tribunal to be satisfied that the visa applicant has demonstrated he has adequate means, or access to adequate means, to support himself while a visitor in Australia. Clause 600.212 states:

    600.212
    The applicant has:

    (a) adequate means to support himself or herself; or

    (b) access to adequate means to support himself or herself;

    during the period of the applicant’s intended stay in Australia.

16. In assessing whether the applicant has adequate means of support, the Tribunal considered what activities he plans to undertake and his living arrangements while in Australia. The applicant gave evidence at the hearing that he has been working to support himself on local farms while in Australia. In his statutory declaration dated 26 February 2021 he said he had been working in Australia to avoid becoming destitute. He acknowledged that this is a breach of visa conditions but advised that if he is granted a Visitor visa, he will adhere to the ‘no work’ condition. The applicant indicated that if granted a Visitor visa, he is hoping to find an employer who will sponsor him for work. Therefore, active engagement in work in breach of visa conditions is the applicant’s current means of supporting himself.

17. In his Application for a Visitor Short Stay Visa dated 4 October 2018, the applicant requested a further stay of “Up to 3 months”. At the time he declared he will be self-funded during his stay in Australia and that he had $10,000 in a bank account. However, the applicant did not provide independent evidence of those funds and his application was refused. The representative’s submission dated 5 February 2021 provided to the Tribunal attaches information about COVID-19 in Malaysia and states: Accordingly, we respectfully submit that the applicant should continue to be considered a visitor in light of the COVID-19 pandemic as he is temporarily remaining in Australia until the COVID-19 situation in Malaysia becomes safe enough to return.

18. Since the applicant has indicated he will be meeting his own expenses during the proposed visit, the Tribunal had regard to Departmental policy in assessing whether the applicant has demonstrated he meets the criteria in cl.600.212. The Tribunal is not bound by Departmental policy and has referred to it only for the purpose of assessing the applicant’s individual circumstances. According to policy, evidence of funds may include, but is not limited to:

    ·     bank statements and/or passbooks

    ·     letters from banks and/or other financial institutions concerning the financial position of the applicant or the applicant’s access to the funds of another person

    ·     air tickets that have already been purchased

    ·     available credit card funds.

19. Contrary to his answer in the Application for a Visitor Short Stay Visa that he had $10,000 in a bank account, at the Tribunal hearing the applicant stated he did not have a bank account. He did not provide any of the above evidence, or any other evidence to demonstrate that he has adequate means, or access to adequate means to support himself during the period of intended stay in Australia. Although the applicant claimed to be employed on farms, he did not provide independent evidence this, or evidence that he has been receiving payment. Having assessed the applicant’s relevant individual circumstances, the Tribunal finds the applicant has not provided evidence that demonstrates he meets the criteria in cl.600.212.

20. As outlined above, the applicant declared he does not want to depart Australia due to COVID-19. The applicant’s representative’s submission dated 5 February 2021 sets out in detail the pandemic situation in Malaysia and attaches supporting evidence. The submission states the applicant wants to continue to stay in Australia as a visitor until he can safely return to Malaysia. The Tribunal notes that the Department recognises COVID-19 travel restrictions may prevent some international visitors from departing Australia as planned or meeting their visa conditions.[1] While the Department may take this into account when considering any applications, it is not open to the Tribunal to remit a decision on that basis alone.

    [1] >

    Having considered the evidence individually and cumulatively, for the above reasons the Tribunal is not satisfied that the visa applicant has been able to satisfy the Tribunal that he has adequate means, or access to adequate means to support himself during the period of his intended stay in Australia. Therefore, the Tribunal finds that the requirements of cl.600.212 are not met

    DECISION

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

    Wendy Banfield
    Member