Samsul Anver (Migration)

[2018] AATA 4137

Samsul Anver (Migration) [2018] AATA 4137 (6 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Anfes Mohomed Samsul Anver

VISA APPLICANT:  Mrs Fathuma Shifa Mohomed Ismail

CASE NUMBER:  1711863

HOME AFFAIRS REFERENCE(S):           CLD201720358010

MEMBER:Paul Windsor

DATE:6 September 2018

PLACE OF DECISION:  Melbourne

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 06 September 2018 at 12:10pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – purpose to visit family – retirement age – desire to care for grandchildren – religious tuition in home country – religious based communal tension – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 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 Immigration on 20 April 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 28 March 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 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.600.211, 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, based on the evidence provided, the delegate was not satisfied that the applicant had demonstrated sufficient personal, family or financial incentives to return to her home country and therefore was not satisfied that the applicant genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 6 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife, Ms Wanigasundara Mudalige Sanushi Charume, and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting her son, who is an Australian citizen, and his family.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. 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)).  As the visa applicant has never held an Australian visa, this condition is not relevant to her circumstances.

10. 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(2)):

    ·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.

11. The Tribunal finds there is nothing to indicate that the visa applicant, who is aged 66 years, intends to work, study or undertake training in Australia.  Condition 8503 imposes a lack of entitlement and as such the applicant cannot breach that condition.  Based on careful consideration of all the evidence, the Tribunal considers that the applicant will abide by condition 8531 by departing Australia within the permitted stay period.

12. In reaching the above conclusion the Tribunal has considered the applicant’s economic, financial and family circumstances.  The delegate considered that the evidence provided at the time of decision indicates that the applicant is self-employed and has some savings but did not consider the evidence of self-employment to be substantial, and was not satisfied that the applicant’s economic or financial circumstances were strong and that they represent a significant incentive for her to return to Sri Lanka.  The delegate, while finding that the applicant’s family circumstances may provide some incentive for her to return to Sri Lanka, was not satisfied that they are sufficiently strong to overcome concerns in relation to her financial circumstances.   The delegate also noted that the applicant had only undertaken limited regional travel.

13. The applicant is 66 years old.  She has only travelled overseas on one occasion previously, when she undertook the Haj in Saudi Arabia.  She indicated that she does some part-time tutoring in religious studies (for three hours on each occasion, approximately three times a week).  She is divorced and lives with her daughter, her daughter’s husband and their three children in Dehiwala, a district of greater Colombo.  She has two other sons whose families are based in districts close to Colombo (these sons work in Saudi Arabia and Qatar).  She indicated that her daughter works in a Montessori pre-school and that she provides substantial care to her daughter’s children (aged 18, 15 and 7 years) and has regular contact with her other son’s families, including a further five grandchildren.  The Tribunal considers that the applicant is at retirement age and that she does not need or desire to work full time or more hours or in better paid employment to support herself.  She lives with and is supported by her daughter and her daughter’s family in Sri Lanka.  The Tribunal found compelling the review applicant’s evidence that his mother has a has a strong incentive to return to Sri Lanka to continue to care for her daughter’s children and to continue to have regular contact with her other grandchildren in Sri Lanka.  The Tribunal also accepted the review applicant’s evidence indicating that his mother loves Sri Lanka and continues to provide religious tuition on a part-time basis because her religion is very important to her and doing this provides great meaning to her life, rather than simply being a source of income.

14. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The Tribunal discussed with the review applicant and his wife the circumstances of their coming to Australia and becoming Australian citizens.  The Tribunal finds that these circumstances are not relevant to the visa applicant’s circumstances.  The Tribunal also discussed with the review applicant and his wife country information from the Department of Foreign Affairs and Trade (DFAT) regarding the Muslim community in Sri Lanka, including that there have been tensions between Muslims and the Sinhala Buddhist majority and the Tamil community in various parts of Sri Lanka, that these had sometimes spilled over into conflict, and that in March 2016 the government declared a nationwide State of Emergency for 12 days in response to communal unrest in the Kandy district of Sri Lanka.[1]  The review applicant agreed that there are sometimes communal tensions and commented that sometimes small incidents are exploited by those who want to create difficulties, often for political purposes.  He indicated, however, that overwhelmingly the country is now peaceful, especially in Colombo, and that most people from all communities want to live together in peace.  Noting the DFAT assessment that Sri Lankan Muslims face a low risk of official and societal discrimination and a low risk of violence, the Tribunal accepted the review applicant’s assurances that religious based communal tensions were not and would not be an incentive for his mother to remain in Australia beyond the stay period on any visa granted to her.  The review applicant and his wife also indicated that they had successfully sought review by the Tribunal of a previous decision to refuse Visitor visas to her parents, who subsequently visited Australia in 2012 and complied with the conditions of their visas.  They expressed their gratitude to the Tribunal for this opportunity and commented that they were equally certain that the visa applicant would comply with the conditions of a Visitor visa, also indicating that they hoped that other family members would be able to visit Australia in the future.  The Tribunal found the review applicant and his wife to be genuine and sincere in their comments and accepts their assurances.

    [1] DFAT Country Information report, Sri Lanka, 23 May 2018, sections 3.18-3.24.

15. 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

16. 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.

    Paul Windsor
    Member