Sarma (Migration)

[2023] AATA 3994

Sarma (Migration) [2023] AATA 3994 (23 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rajani Sarma

VISA APPLICANT:  Mr Paranitharan Sathananthasarma

REPRESENTATIVE:  Mr Ganasan Arujunan

CASE NUMBER:  2317279

HOME AFFAIRS REFERENCE(S):          BCC2023/5609184

MEMBER:Margie Bourke

DATE:23 November 2023

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 23 November 2023 at 5:44pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – family visit to applicant’s seriously ill father – family commitments in home country – business and community ties in Sri Lanka – plans for further family visits – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 13 October 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 applied for the visa on 29 September 2023. 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.

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 after considering the information provided, the delegate was not satisfied the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, the nature of the review, and the assessment that the review be conducted with priority. The Tribunal was of the view that the conduct of the hearing by video would allow the review applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The review did not involve a large number of documents to be put to the applicant during the course of the hearing. The Tribunal assessed the information provided by the review applicant, as requiring the hearing to be scheduled as a matter of urgency. For all the above reasons the Tribunal considered this matter appropriate to be conducted by way of video connection, and the review applicant was invited to attend a video hearing.  

6. The review applicant consented to a hearing being scheduled with a shortened notice of the hearing date.

7. The review applicant appeared before the Tribunal on 23 November 2023 by video on the same device as her representative, to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who attended by video from Sri Lanka. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

8. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing by video with the review applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of a family visit, in particular to visit his father who is very ill. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

12. Cl.600.211(a): – 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.

13. I am satisfied based on the evidence before me that the visa applicant has never travelled to Australia previously, and has never held a substantive visa or bridging visa in Australia. There is no evidence therefore of compliance or non-compliance with the previous substantive visa or bridging visa held by the visa applicant. I accept the visa applicant has previously made applications for visas which have been refused. I accept the visa applicant travelled to the United Kingdom in 2009 as the holder of a visa, and there is no evidence that the visa applicant did not comply with the terms of that visa.

14. As the visa applicant has never previously held an Australian substantive visa or bridging visa, I give this consideration neutral weight in my assessment of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose of a family visit.

15. Cl.600.211(b): – The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. 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.

16. I am satisfied that the visa applicant wishes to travel to Australia as the holder of the visitor visa to spend time with his father. I am satisfied based on the birth certificates that the review applicant and the visa applicant are biological siblings. I am satisfied based on the birth certificates of the visa applicant and the review applicant, and the change of name certificate of their father, that the medical reports provided relate to the father of the review applicant and the visa applicant.

17. I am satisfied based on the medical reports provided dated 15 September 2023 and 10 November 2023, that the father of the visa applicant and review applicant is seriously unwell and currently an inpatient in hospital. The medical reports advise the father of the visa applicant and review applicant had an episode of severe heart failure in September 2023, and was diagnosed with acute renal failure at that time. I accept that he is currently being treated for severe acute kidney injury and congestive cardiac failure with fluid overload. I am satisfied that the father of the review applicant and the visa applicant is seriously unwell, is unable to travel and his future is uncertain.

18. I am satisfied that the visa applicant has not seen his father for a period of 13 years. I am satisfied that the visa applicant’s father wishes to see his three children who currently reside in Sri Lanka. I accept the visa applicant is the only son. I am satisfied that there are compelling reasons why the visa applicant wishes to travel to Australia at this time to visit his father.

19. I am satisfied based on the oral and written evidence before me that the visa applicant does not intend to work, study or train while in Australia as the holder of a visitor visa. I accept the evidence of the visa applicant that he does not intend to apply for another visa whilst in Australia as the holder of a visitor visa.

20. I accept the evidence of the visa applicant that he will reside with either the review applicant, or with his mother during the period of his visit to Australia.

21. I am satisfied based on the oral and written evidence before me that the visa applicant intends to return to his home country before the expiration of the visa. I am satisfied that the visa applicant is married with twin sons who are currently applying for or have entered university. I am satisfied that the visa applicant is a Hindu priest and works part-time as a pharmacist. I am satisfied that the visa applicant also has financial commitments in Sri Lanka. I am satisfied the visa applicant has substantial personal, business and community ties in his home country.

22. I have considered the visa applicant’s personal circumstances, the reasons why he wishes to come to Australia as the holder of a visitor visa, and his evidence of his intentions to comply with the conditions of the visa. I am satisfied based on my assessment of all the evidence before me, that the visa applicant intends to return to Sri Lanka before the expiration of the visa, and intends to comply with all the conditions to which the visitor visa would be subject.

23. Cl.600.211(c): – The Tribunal has also considered all other relevant matters. I give significant weight to the evidence of the review applicant and the visa applicant, that after the visa applicant has visited his father, his two other sisters who reside in Sri Lanka wish to visit his father. I accept that one sister has applied for a visitor visa, which was refused by the Department, and this sister has not applied to the Tribunal for a review of that decision, but is still in time to seek to apply for a review of the refusal decision. I accept that initially the plan was that the visa applicant and this sister would travel together to visit their father.

24. I accept that the review applicant and the visa applicant both understand that if the review applicant does not comply with all the conditions to which the visitor visa would be subject, the review applicant is unlikely to be able to successfully sponsor her other siblings to visit their ill father. Further the review applicant and the visa applicant understand that if the visa applicant does not comply with all the conditions to which the visitor visa would be subject, the review applicant is unlikely to be able to successfully sponsor other family members to visit her in the future.

25. I accept the evidence of the review applicant that it is an important wish of her father that he sees all his children before his death. I accept the evidence of the review applicant that she will ensure the visa applicant returns to his home country before the expiration of the visa. I accept the evidence of the visa applicant that he will return to Sri Lanka before the expiration of the visa, because of his commitment to his own family in Sri Lanka, his commitment to siblings in Sri Lanka who also wish to visit his father, and his commitment to his sister the review applicant who is sponsoring her three siblings to come and visit their father in accordance with his wishes.

26. I have considered this evidence which is relevant to the review, and I assess this evidence as positively indicating that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of a family visit as the holder of the visitor visa.

27. 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

28. 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.

    Margie Bourke
    Member