Rasyid (Migration)

[2020] AATA 101

Rasyid (Migration) [2020] AATA 101 (22 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hasanuddin Bin Rasyid

VISA APPLICANT:  Ms Julfina Hasanuddin

CASE NUMBER:  1808020

HOME AFFAIRS REFERENCE(S):           BCC2017/4567627

MEMBER:Melissa McAdam

DATE:22 January 2020

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 22 January 2020 at 10:13am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visiting family – no travel history – intention to comply with visa conditions – sufficient personal savings – strong family ties in Indonesia – reasonably stable and valued employment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration on 16 January 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The review applicant was represented in relation to the review by his registered migration agent.

3. The visa applicant applied for the visa on 1 December 2017. 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 Sponsored Family stream.

4. 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.600.211, 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.

5. The visa applicant provided the following information in her visa application:

   a.She is 36 year old married woman from Aceh, Indonesia.

   b.Her parents live in Australia.

   c.She would like to spend up to three months in Australia with her aged parents and siblings.

   d.Her husband will remain in Indonesia while she visits Australia.

   e.Her father will provide all the support she requires while in Australia.

   f.She previously lodged a Visitor visa application in April 2017 which was refused.

6. The review applicant provided the following information in the visa application:

   a.He is the visa applicant’s father.  He is an Australian citizen.

   b.He works as a labourer for a recycling centre.

7. The applicants submitted copies of the following documents with the visa application:

   i.    A ‘work certificate’ for the visa applicant stating that she has worked at a motor company in administration since June 2016. She can resume her work there after she visits Australia.

   ii.The visa applicant’s Indonesian ID Card.

   iii.A pay slip for the visa applicant’s brother.

   iv.The review applicant’s NSW Driver's licence.

   v.The visa applicant’s Bank Account statement.

   vi.The visa applicant’s Indonesian Birth Certificate.

   vii.The Department’s decision refusing the visa applicant’s application for a Visitor visa in April 2017.

   viii.The visa applicant’s brother’s Australian passport.

   ix.The visa applicant’s mother’s Indonesian passport.

   x.The review applicant’s Australian passport.

   xi.The visa applicant’s sisters’ Indonesian passports.

   xii.The visa applicant’s husband’s Indonesian passport.

   xiii.The visa applicant’s Marriage Certificate.

   xiv.The review applicant’s payslips.

   xv.The review applicant’s Bank Account statements.

8. 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 her husband’s presence and her employment in Indonesia sufficiently demonstrated she had a genuine intention to visit Australia.

   Information to the Tribunal

   Pre-Hearing Submission

9. On 6 December 2019 the applicants provided the following written information to the Tribunal:

   -     A submission by the Agent stating that the visa applicant continues to be employed by PT. Ljonga Sarana Andalas at a salary of $551.83 per month. Her husband is employed by the Public Health Centre of Pidie.  She has a bank account with funds of $18,148.50.  Her husband has a bank balance of $8,035. She owns land equivalent to the value of $126,505. Her husband will remain in Indonesia while the visa applicant travels to Australia.

   -     A copy of the visa applicant’s employment contract.

   -     A letter from the visa applicant’s employer certifying the visa applicant has been  employed since October 2017 as administration staff, and that she will be able to return to her work after she visits Australia.

   -     A bank account statement in the visa applicant’s name showing a closing balance of 174.304.970,00 IDR as at 4 December 2019.

   -     A letter from the visa applicant’s husband’s employer certifying he has been employed as ‘honorary staff’ since January 2014.

   -     A bank account statement in the visa applicant’s husband’s name showing a closing balance of 77,175,849.51 IDR as at 4 December 2019.

   Tribunal Hearing

10. The review applicant appeared before the Tribunal on 18 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, the review applicant’s younger daughter Zahrina, and family friend, Jennifer Toisuta. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

11. The following is a summary of the information provided by the review applicant at the hearing:

    a.His wife, two daughters, and one sister are all living in Australia with him.

    b.The only family he has in Indonesia are Julfina, the visa applicant, and her husband.

    c.He is confident Julfina will return to Indonesia because her husband works there and she would not come to live in Australia because of that.  She wants to come to visit her parents and siblings in Australia.

    d.He and his son came to Australia in 2008 on holiday visas. His wife and two youngest daughters came to Australia in 2013.  He sponsored them to come here as permanent residents. Julfina could not come because she was married.

    e.He and his son did not return to Indonesia before their visitor visas expired. This was because of the situation in Aceh. In 2013 he went to Malaysia to bring his wife and daughters to Australia.

    f.After he obtained an Australian passport he returned to Aceh in about 2014.

    g.He last visited Aceh in about September this year and spent time with Julfina there.

    h.It is important for Julfina to visit Australia so she can see where her parents live, in case something happens to them. They are old and if something happens to them she is not familiar with Australia and may not be able to find her way.  Australia is a big country.  If he and his wife die it will be a problem for her. Julfina needs to come to Australia to know where they live in case disaster strikes.

    i.Julfina’s husband works as a nurse in the District First Aid Centre. Julfina works in administration at a company.

    j.Julfina does not have any problems in Aceh. She has no religious or political problems there at all. She has no problems because of the review applicant. She is happy with her husband in Aceh.

    k.Julfina has responsibilities for her work so she will return to Indonesia.

    l.She wants to visit Australia for as long as the Australian government lets her, 1, 2, or 3 months.  She has permission from her manager to go abroad to visit her parents.  Her work will allow her to stay away as long as she wishes. It will be her manager’s responsibility as to who will do her work while she is gone.

    m.The review applicant has no relatives in Aceh, just Julfina.  Everyone else has died or  left Aceh.  Julfina’s husband’s parents and brother are still in Aceh.

    n.It would be great if Julfina can get permanent residence in Australia and bring her husband here. If she can’t then she will just visit.

    o.If they need to lodge a security bond for Julfina’s visit they will try to raise the money. Only the review applicant is working to support the whole family. They have expenses such as rent and bills and they cannot afford to lose any money or go into debt

12. The following is a summary of the information provided by the review applicant’s daughter, Zahrina, at the hearing:

    a.She went with her family to visit Julfina in Aceh.

    b.Julfina seemed happy and the situation in Aceh was good while Zahrina was there.

13. The following is a summary of the information provided by Ms Jenny Toisuta at the hearing:

    a.She has known the family for many years in Australia.

    b.She helped the review applicant obtain permanent residence for his wife and two youngest daughters.  Because Julfina was married she was not eligible to be included in the visa applications. The family found this difficult to accept.

    c.They realise that their good name is tied up with their daughter Julfina returning to Indonesia.  Julfina does not want to cause them any problems in Australia.

14. The following is a summary of the information provided by the visa applicant at the hearing:

    a.She wants to come to Australia for as long as she can, but at most one month.

    b.She will return to Indonesia because her husband and work are there.

    c.She has no problems in Aceh.

    d.She has no problems, none at all, with her husband.

    e.She wants to visit Australia in case anything happens to her parents here so she knows where they are.

    f.She and her husband both applied for Visitor visas to Australia in the past. This time only she is applying because her husband has to stay for his work.

    Post-Hearing Submission

15. On 2 January 2020 the applicants submitted the following written material to the Tribunal:

    -     Statement by Abdul Muthalib, dated 20 December 2019, stating that he sees and knows that the visa applicant and her husband have a harmonious relationship.  They never quarrel and always look happy. They have income that is more than enough for daily life. The statement is witnessed by three other people - two neighbours and the visa applicant’s husband’s younger brother.

    -     Statement by the visa applicant, dated 20 December 2019, stating that she is going to Australia just to visit her parents and relatives and have a holiday.  She has no intention to stay in Australia permanently because she has a job in Aceh. She has a husband and she cannot leave him for long. For Acehnese, marriage is once for a lifetime.  She has parents-in-law who are senior. Her husband takes care of them when they often get ill.  He visits them almost every day. The visa applicant works in Banda Aceh and every Friday afternoon returns to Sigli. Early on Monday mornings she goes to Banda Aceh which is two hours’ drive away.  When she is home she visits her parents-in-law who she treats like her own parents. It is not possible for her husband to leave them alone for more than two or three days.  They live with their youngest child but feel much closer to her husband. He is devoted to them too.  She has assets in Aceh which she must manage with her husband. She has a rental house and land for cultivation.  She has a good living condition in Aceh with a salary more than enough to meet her living costs.  She has a loving husband, parents-in-law and her husband’s relatives who love her.  She has a comfortable and lovely housing environment. It is impossible for her to leave all that. She is very happy living in Aceh.

    -     Copies of two Indonesian Identity Cards, the names on the cards are not legible.

    -     A copy of the visa applicant’s Indonesian passport.

    -     An Indonesia Family Registration list.

    -     A Statutory Declaration from the review applicant and his wife, stating they went  to Indonesia in December 2018 and August 2019 to visit the visa applicant.  They could see that she is living a good, happy and comfortable life in Indonesia. She has a husband who loves her and are a very loving couple who love each other very much and support each other in everything. They could tell that the visa applicant is very close to her husband and inseparable, sharing thoughts and opinions with each other. The visa applicant is also very close to her in-laws.  Her husband has an aged mother who is very attached to them. They live close by. The visa applicant regularly visits and takes care of her mother-in-law.  It is her and her husband’s responsibility to take care of the older generation.  Her mother-in-law’s health is deteriorating. They are all very close to each other. The visa applicant and her husband are very close to their neighbours and always help their community.  They are well loved by their community.  The visa applicant will not stay in Australia more than three months  they guarantee she will return to Indonesia. She has a stable job, loving husband, and in-laws who are attached to her.  She and her husband manage properties which are rented and farmed out. While the visa applicant is in Australia her manager will take care of her work temporarily and her husband and his siblings will take over responsibilities for  her in-laws and management of the properties.  The review applicant and his wife are both very old and very much wish the visa applicant, as their eldest daughter, will be able to visit them in Australia to understand their life here.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. In the present case, the visa applicant seeks the visa for the purposes of visiting her family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

18. 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 visa applicant has not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by her.

19. 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.600.612):

    ·8101 – must not work in Australia

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

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

20. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The Tribunal accepts that the visa applicant has personal savings and sufficient funds to support herself during a visit to Australia. There is no indication before the Tribunal that the visa applicant intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied she intends to comply with condition 8101.

21. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

22. Condition 8503 refers to entitlement and is not a condition that involves compliance.

23. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

24. The Tribunal accepts that the visa applicant is a married woman from Aceh in Indonesia. The Tribunal accepts the visa applicant’s husband and in-laws also reside in Aceh.  The Tribunal considers that the presence of the visa applicant’s husband represents significant incentive for the visa applicant to return to Aceh after a short stay in Australia. The Tribunal accepts the visa applicant has a close connection and responsibilities to her parents-in-law and that this will also motivate her to return to Indonesia.

25. The Tribunal accepts that the visa applicant has reasonably stable and valued income from her work as administrative staff in a company in Aceh. The Tribunal accepts that this work can be done temporarily by others while the visa applicant visits Australia.  The Tribunal considers that the visa applicant would wish to maintain and resume her employment and that this also will be incentive for her to return to Indonesia.

26. The Tribunal notes that the visa applicant’s father and brother visited Australia and changed their visa status while present, without returning to Indonesia until after they obtained permanent residence here. While some of the evidence provided by the review applicant at hearing raises concerns about the information he provided in his earlier visa application, the Tribunal accepts that this does not of itself mean that the visa applicant’s intentions to visit Australia are not genuine.

27. The applicants have provided a great deal of information about the visa applicant’s strong connections to her home area, husband and in-laws in Aceh. They have also provided detailed and clear evidence that she has a happy and comfortable life there.

28. At hearing the review applicant expressed his wish that the visa applicant and her husband obtain permanent residence in Australia. However given the difficulty of being able to do so while just the visa applicant is in Australia on a Visitor visa, the Tribunal does not consider that his statement undermines the genuineness of the visa applicant’s intention to visit temporarily if a Visitor visa is granted to her. It may be that they explore further options to one day obtain permanent residence but this can and should be pursued after she departs Australia.

29. The information before the Tribunal does not indicate that there is anything currently about her life in Aceh that would motivate the visa applicant to remain in Australia past the expiry of a Visitor visa.

30. The Tribunal is therefore 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

31. 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.

    Melissa McAdam
    Member