Sathiyamurthy (Migration)

[2021] AATA 4850

Sathiyamurthy (Migration) [2021] AATA 4850 (29 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Poobalan Sathiyamurthy

CASE NUMBER:  2013165

HOME AFFAIRS REFERENCE(S):          BCC2020/1408419

MEMBER:Naomi Schmitz

DATE:29 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 29 November 2021 at 12:09pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – employment commitments – remaining in Australia due to the COVID-19 pandemic – previous compliant visit – adequate means of support – working without permission – claimed family commitments in home country – maintain an ongoing residence in Australia – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.611

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 4 August 2020 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 21 April 2020. 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. In particular, the delegate was not satisfied that the visa applicant had demonstrated sufficient employment, economic, family or other commitments in Malaysia that would provide a sufficient incentive for him to return. The visa applicant also did not provide sufficient evidence of his finances which raised doubts as to the visa applicant’s claimed ongoing employment and overall economic circumstances.

5. The applicant appeared before the Tribunal on 11 November 2021 to give evidence and present arguments.

6. On 10 November 2021 the visa applicant provided to the Tribunal seven screen shots regarding COVID-19 cases in Malaysia, including the visa applicant’s hometown of Kuala Lumpur and screen shots criticising the Malaysian government’s handling of the COVID-19 pandemic. On 11 November 2021 on the morning of the hearing, the visa applicant submitted two screen shots of a bank account showing various transactions between 2 September 2021 and 27 October 2021. These screen shots did not identify the account holder, the banking institution the funds are held in, the source of various money deposits or particularise any transactions.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The visa applicant is a 41-year-old citizen of Malaysia. In the present case, the visa applicant seeks the visa for the purposes of remaining in Australia due to the COVID-19 pandemic. He stated that it was not safe to return to Malaysia, with various members of his immediate family dying and that he wanted to wait until the COVID-19 pandemic was over or at least the case numbers very low. He also stated he intended to travel to The Pinnacles Desert in Western Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221.

10. On 21 September 2020 the visa applicant requested a further stay of three months until 19 July 2020.

11. 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)).

12. Travel movement records show that the visa applicant has been granted one visitor visa and one bridging visa which he remains on and has been compliant. The Tribunal places some weight on the visa applicant’s substantial compliance with the conditions of his last substantive visa and bridging visa. (cl.600.211(a).

13. 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.

14. The Tribunal accepts that the visa applicant does not intend to undertake any studies whilst in Australia, given his declaration in his visa application and the oral evidence given at the hearing. However, the Tribunal is not satisfied that the visa applicant intends to comply with condition 8101, as there is no independent and credible evidence to support that the visa applicant has adequate means to support himself during the period of his intended stay in Australia. The visa applicant provided two screen shots of a bank statement. However, these screen shots do not identify the account holder and the currency of the funds. The Tribunal consequently is not satisfied that the bank account belongs to the visa applicant or a third party prepared to support the visa applicant and the quantum of the funds. At the hearing, no witnesses gave evidence that they were prepared to support the visa applicant. The visa applicant also gave evidence that his alleged fiancé was unemployed. As there is no evidence as to the visa applicant’s financial situation and how he will support himself, the Tribunal is not satisfied that the visa applicant intends to comply with condition 8101.

15. The Tribunal also has doubts as to the visa applicants intention to comply with condition 8101 due to his oral evidence at the hearing. The visa applicant originally claimed that he had been working since arriving in Australia. The Tribunal Member put to the visa applicant his travel movement records, namely that he arrived on a Visitor visa and explained that the visa did not permit the visa applicant to work, as to do so would constitute a breach of his visa condition. The Tribunal Member also explained that the further Visitor visa he had applied for would have the same work prohibition. The visa applicant subsequently recanted his evidence. The Tribunal Member found his later denials not credible and self-serving. Although there are no formally recorded breaches of the visa applicant’s previous visas as outlined in paragraph [12] and the Tribunal has proceeded on this basis that he has complied with all previous visas, the visa applicant’s evidence raises concerns as to the visa applicant’s financial capacity to support himself and therefore intention to comply with condition 8101.

16. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

17. The Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside of Malaysia. The visa applicant stated that he has spent a week in Philippines in 2019 and one day in transit in Bali. Due to the short durations and the fact that no independent evidence such as a copy of the visa applicant’s passport with country stamps were provided, limited weight can be placed on the visa applicant’s evidence that he has undertaken the abovenamed travel.

18. The Tribunal asked the visa applicant what incentives he had to return to Malaysia at the end of his proposed visit. The visa applicant claimed to have family who reside in Kuala Lumpur, Malaysia, including a fiancé of seven years and a five-year-old son, his parents and sister. The visa applicant stated that he intended to marry his finance ‘but not so soon’. No records such as a birth certificate which could confirm the existence of the visa applicant’s child were provided, despite being readily available, given the visa applicant’s claims of being in regular contact with his fiancé and child. The visa applicant stated he has a cousin who resides in Western Australia.

19. The Tribunal Member also noted from the visa applicant’s travel movement records that the visa applicant has not seen his alleged son since he was three years of age and put to the visa applicant, that surely the visa applicant would put his child and fiancé’s wellbeing first and his fears of COVID-19 aside to return home to be with them. The visa applicant replied that he would have to quarantine for 10 days and that he wanted to remain in Australia. The visa applicant’s response and demeanour appeared to be inconsistent with his family claims and a father and partner allegedly missing his family. While the Tribunal acknowledges that the visa applicant’s parents and sister may offer some inducement to return to his home country, the Tribunal is not satisfied that their presence sufficiently demonstrates that the visa applicant intends a genuine temporary stay in Australia. When assessing the visa applicant’s evidence, the Tribunal is not satisfied that the visa applicant has a fiancé or five-year-old son who would act as an incentive to return.

20. The visa applicant also claimed to own a property with his father, but did not provide any corroborative evidence such as a certificate of title or current rates notice. The visa applicant claimed to own a motorcycle and have approximately $10,000 in his fiancé’s Malaysian bank account. He stated that he is currently unemployed and not working for his former employer, but that his employer was holding his job open for him until he returns. The Tribunal does not accept that the visa applicant owns any property or have any savings due to there being no supportive evidence. Limited weight is placed on the visa applicant’s motorcycle given it could be easily sold or transferred and has not been used by the visa applicant for approximately two years since arriving in Australia on 4 February 2020, where he has remained until the date of this decision. There is no evidence to indicate that the visa applicant has future employment.

21. As highlighted by the Tribunal Member at the hearing, the visa applicant was put on notice at the Departmental stage that there was insufficient evidence in relation to the visa applicant’s family, assets, employment and economic incentives to return to Malaysia. The Tribunal also notes the visa applicant has had one year and three months to submit evidence, since lodging an application for review on 28 August 2020, but failed to do so.

22. The visa applicant gave evidence that he is currently leasing a property in Mt Lawley, Western Australia and that he leases a motor vehicle. The Tribunal Member asked the visa applicant what was stopping him from applying for a subsequent visa, such as a working visa, given he had applied for a Visitor visa in the tourist stream, which does not have a ‘no further stay’ 8531 condition. This is also in light of Australia having strong economic and employment opportunities. In response the visa applicant stated ‘nothing’ and that he would like to undertake studies such as business administration course and work if given a chance to work in Australia and had no intention of returning to Malaysia.

23. The Tribunal has also taken into account the situation of a visa applicant’s home country, Malaysia, which may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report, which discusses the impact of COVID-19 in Malaysia. Although the Malaysian government’s response to COVID-19 including lockdown measures successfully reduced the virus in the early stages, however large clusters have contributed to a rise in COVID-19 cases. As of 26 June 2021, there were 722,659 confirmed cases and 4,803 deaths and in January 2021 there were more than 5000 cases per day. The Tribunal Member contrasted this to Australia, which has far less COVID-19 related cases and deaths. In response the visa applicant stated ‘that’s why I don’t want to return…exactly’. The Tribunal notes that the visa applicant provided seven screen shots including one that stated there were over 5400 cases per day and clearly show that the visa applicant fears returning to Malaysia. The report also referred to the fact that although there are no laws or constitutional provisions that directly discriminate against Indian or Chinese Malaysians, however in practice they are affected by the constitutional preference for Bumiputera which consequently acts as a barrier for employment particularly in the civil service and ownership laws. The visa applicant replied that he had no intention to return to Malaysia and that there was ‘no future for other ethnics except the Bumiputera’ and given a chance to stay he would work and stay.

24. The visa applicant gave evidence that he did not have any well-founded fear of any form of persecution in Malaysia due to his race, religion, nationality, membership of a particular social group or political opinion. The visa applicant is Indian Malay and of the Hindu faith. The Tribunal accepts the visa applicant evidence.

25. The Tribunal has considered all matters carefully. The visa applicant has a valid reason to apply for the visa. The Tribunal places some weight on the visa applicant’s substantial compliance with the conditions of his last substantive visa and bridging visa. The visa applicant has travelled to the Philippines for one week and Bali for one day. No corroborative evidence was provided in support and consequently limited weight can be placed on this alleged travel.

26. While the visa applicant’s parents and sister may serve as some inducement to return, the Tribunal is not satisfied that their presence sufficiently demonstrates that the visa applicant intends a genuine temporary stay in Australia. The Tribunal is not satisfied that the visa applicant has a fiancé or five-year-old child due to his oral evidence and lack of corroborative evidence. The Tribunal does not accept that the visa applicant owns a property or has any savings due to no supportive documentary evidence. Even if the visa applicant had some savings, such savings could be remotely accessed from Australia and therefore limited weight would be placed on them. Limited weight is placed on the visa applicant’s motorcycle as it can be easily transferred or sold. There is no evidence of future employment in Malaysia.

27. The Tribunal is of the view that the visa applicant has no intention of complying with condition 8101 due to a lack of finances. From the visa applicant’s travel movement records, the Tribunal notes that the visa applicant has been in Australia for almost two years. During the visa applicant’s evidence he expressed an intention to remain in Australia to work or study. Balancing all the objective evidence, it appears that the visa applicant is attempting to use the Visitor visa to maintain an ongoing residence in Australia and that he does not have a genuine intention of staying temporarily. The visa applicant did not present as a credible or reliable witness.

28. Finally, the Tribunal also has concerns that the visa applicant does not have an intention to remain temporarily in Australia due to the COVID-19 situation in Malaysia which is supported by seven screenshots sent by the visa applicant to the Tribunal and his oral evidence that he fears returning to home to Malaysia due to the COVID-19 pandemic. The visa applicant also gave evidence that he does not have very good employment opportunities in Malaysia and wishes to work or study in Australia.

29. Thus, considering all these matters cumulatively, the Tribunal is not 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 not met.

    DECISION

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

    Naomi Schmitz
    Member