Sharma (Migration)

[2024] AATA 3825

Sharma (Migration) [2024] AATA 3825 (11 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sarla Wati Sharma

VISA APPLICANT:  Mr Sanjai Anand Sharma

CASE NUMBER:  2303594

HOME AFFAIRS REFERENCE(S):          BCC2023/46646

MEMBER:Tania Flood

DATE:11 March 2024

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 11 March 2024 at 12:42pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – visiting family – genuine temporary entrant and compliance with conditions – established business with government contracts and loans – two adult children work there but do not have full authority, and other adult children live in family home – one brother granted visa after applying at same time – another brother’s Australian permanent visa application – differing evidence by visa and review applicants – brother has not disclosed all information to siblings – appropriate for department to impose bond – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 7 March 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 27 January 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 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 visa was refused on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied he genuinely intends to stay temporarily in Australia. 

5. The review applicant appeared before the Tribunal on 28 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone.

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

   Background

7. According to information contained in the application for the Visitor visa the visa applicant is a fifty-three-year-old Fijian citizen.  He indicated he is divorced and resides in Suva.  He has four children aged 27, 26, 23 and 20.  He owns and operates an upholstery business in Suva.  He requested a Visitor visa to visit his sister in Sydney for up to three months.  He indicated he will self-fund his visit and that his sister will provide him with accommodation and food during his stay.  The visa applicant was previously refused a Visitor visa in 2022.

8. Attached to the application is the following documentation:

   -    Copy of the review applicant’s birth certificate;

   -    Copy of a tenancy agreement for the visa applicant’s upholstery business along with rent receipts;

   -    Copy of a certificate of registration of business name for the upholstery business;

   -    A letter of offer for a bank loan;

   -    Copy of a motor vehicle insurance policy in the visa applicant’s name;

   -    Letter of invitation from the review applicant;

   -    Bank statements in the name of the review and visa applicants;

   -    Copy of the review applicant’s passport

   SUBMISSIONS PROVIDED TO THE TRIBUNAL

9. On 13 March 2023 the review applicant provided the Tribunal with copies of both her and the visa applicant’s passport and a copy of the visa applicant’s birth certificate.

   Tribunal hearing

10. The oral testimony of the review and visa applicant’s is summarised as follows:

11. The review applicant has been residing in Australia since 1990.  She is now an Australian citizen.

12. The review applicant divorced five years ago after twenty-four years of marriage.  She has two sons aged 24 and 18 who remain living with her.

13. The review applicant is a full-time nurse.  Both her sons are also working. 

14. The review applicant returned to Fiji in 2023 and visited with the visa applicant.  Prior to that date she last visited Fiji in 2018.

15. The review applicant indicated that she has four brothers.  Two are living in Fiji and two are residing in Australia.  She stated that one brother is a mechanic and came to Australia to work and the other is holding a Bridging visa because he has applied for a [visa].   She stated this brother had many problems at home including problems with his wife’s family and his neighbours who wanted to kill him.  She explained that the problems arose because her brother found his wife with another man.   She indicated that the visa applicant is aware their brother has applied for a [visa] to remain in Australia. 

16. The review applicant stated that her other brother in Fiji is a police officer.  She stated that he applied for a Visitor visa at the same time as the visa applicant and was granted it.  She said he came to visit her last year and then he returned to Fiji. 

17. The review applicant stated that the visa applicant does a lot for her whenever she visits Fiji and she wants to reward him for that.  She stated he has never travelled overseas and was disappointed when his application was rejected. 

18. The review applicant stated that her brother is the sole proprietor of an upholstery business in Fiji.  She stated that he is separated from his wife.  She said they had five children together but one is deceased.   All four of the remaining children are single and live with the visa applicant although one is planning to marry this year or next.   She said that two of the sons work in the upholstery business, one is doing mechanical work and the daughter works as a shop assistant.    The visa applicant also employs three staff in his business.

19. The review applicant stated that the visa applicant rents his business premises in Suva and lives at the same address.  Their family home is about 8 kms away and their brother lives there. 

20. The review applicant stated that the visa applicant will return to Fiji because he has his business to attend to.  She said that the children do not have authority over financial matters concerning the business. 

21. The review applicant indicated she is willing to provide a security bond in order to facilitate the grant of the visa. 

22. The visa applicant’s testimony as to his marital status, family composition, living arrangements, business dealings in Fiji and travel history was consistent with the testimony of the review applicant. 

23. The visa applicant stated that the annual turnover of his business is about 120,000 Fijian dollars.  He indicated the business is doing well as he has several government contracts.  He said he is currently doing a big job for the police force, making seat covers for all their vehicles. 

24. The visa applicant confirmed he took out a loan for $20,000 to purchase raw materials and some machinery.  He said he also received a government loan during the COVID pandemic which he has two years to repay.  He said he has been paying the interest on this loan but from end February he will have to make full repayments of around $645 per month.  He indicated this would not be a hardship.   

25. When asked if he is aware that one of his brothers in Australia has applied for a permanent visa he indicated he was unsure about that.  He also said he was unsure if his brother had problems in his marriage in Fiji. 

26. The visa applicant testified that he is only seeking to visit Australia for three to four weeks.  He said he has been working a long time and hasn’t had any leave.  He said he will return to Fiji after visiting Australia because he has his business to run.   He said he has big contracts to manage and deadlines to meet.   He said his children can manage the business to an extent but he is responsible for handling the paperwork. 

27. The visa applicant confirmed he is a Hindu.  He said he and his family are religious people and they have religious functions at home.  He said they follow the right road and don’t experience any difficulties for this reason.  He stated he is not involved in any political activities in Fiji and has no other significant problems in his country. 

28. The visa applicant concluded his testimony by stating that he would like to visit Australia but if he cannot go then it won’t be a problem.  He stated that he has to follow the right path. 

    Post-hearing correspondence

29. On 29 February 2024 the Tribunal wrote to the review applicant pursuant to the requirements at s.359A of the Act.   The Tribunal put it to the review applicant that she and her brother appear to have provided differing evidence in respect of their brother Parma’s application for a [visa].   Specifically, the Tribunal noted the evidence of the visa applicant that he is not aware that such an application had been made and is uncertain about whether Parma experienced any problems in his marriage in Fiji.  The Tribunal noted that this evidence appears to differ to her testimony which is that the visa applicant is aware that Parma has applied for a [visa] and the reason for this is that his wife’s family and his neighbours tried to kill him for reasons related to these problems.   Further, the Tribunal pointed out that the Departments records show that Parma applied for [a visa] on very different grounds to those outlined by her in the hearing, namely discrimination and harassment on racial grounds. 

30. On 10 March 2024 the review applicant wrote to the Tribunal and she stated that Parma has not disclosed all the information about his visa application and personal relationship to the visa applicant because they are not close.   She said that Parma had only disclosed limited information to her about his wife.  Attached is a letter from Parma Anand Sharma himself which repeats this testimony.

    CONSIDERATION OF CLAIMS AND EVIDENCE

31. 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.

32. In the present case, the visa applicant seeks the visa for the purposes of visiting family.  This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

33. 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)).

34. The review applicant came to Australia in 1990 and she subsequently obtained Australian citizenship.   The visa applicant has never visited Australia. 

35. 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.

36. The visa applicant is proposing a short visit to Australia of a maximum of four weeks to visit his sister in Australia.  The Tribunal accepts he owns and operates a viable business in Fiji and that the review applicant is also employed as a nurse on a full-time basis.  The Tribunal accepts the visa applicant will be accommodated by the review applicant for the during of his proposed stay in Australia.  Based on the available evidence, the Tribunal is satisfied the visa applicant will not and has no need to work in Australia.  Similarly, given the purpose and proposed length of the visit the Tribunal is satisfied he will not engage in study or training in Australia for more than 3 months.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if he is granted a Visitor visa.

37. The Tribunal accepts the visa applicant is divorced and has four remaining adult children.  Two of his children work with him in his business and two have jobs elsewhere.   While the Tribunal considers they are not entirely dependent on him financially, they are nevertheless currently residing with him and the Tribunal formed the view based on the oral testimony given at hearing that they will continue living with him until such time as they marry.  Furthermore, he has one brother residing in Fiji.  While he currently has three siblings residing in Australia, the Tribunal considers the presence of his children in Fiji, and his obligations towards them, outweighs his family ties in Australia.   The Tribunal is satisfied the visa applicant’s close family ties in Fiji will act as an incentive for him to return home after visiting Australia.

38. Additionally, as noted above the Tribunal is satisfied the visa applicant has a viable business in Fiji with ongoing government contracts which need to be met.  He also has some outstanding business loans which based on his testimony he is comfortably servicing and the Tribunal considers it unlikely he would burden his children with this debt.   While it appears at least two of his children are in a position to keep the business running for a period of time in his absence the available evidence supports that it is the visa applicant who maintains control over the financial management of the company.  The Tribunal considers the visa applicant’s business dealings in Fiji will also entice him to return home if he his granted a Visitor visa.

39. The Tribunal acknowledges the fact that one of the review and visa applicant’s brothers applied for a permanent [visa] after arriving in Australia.  The Tribunal has considered the available evidence in this regard, including the post-hearing submission of the review applicant, and remains concerned that the applicants have not been fully transparent about these circumstances.  Notwithstanding this, the Tribunal notes, and finds it significant, that the Department granted their brother, Rajesh Anand Sharma, a Visitor visa on 8 November 2022 and the records show that he entered Australia on 23 August 2023 and departed on 22 September 2023 well prior to the expiry of his visa.  The Tribunal notes that the claims made by Parma Anand Sharma in his application for a [visa] could equally have applied to Rajesh but that he did not similarly seek to remain in Australia permanently for these reasons.  Considering the evidence overall, including the visa applicant’s denial of any related problems in Fiji, and given the abovementioned incentives he has to return to Fiji, the Tribunal is persuaded he will not be motivated to seek to remain in Australia permanently as his brother Parma has done.  

40. Despite the misgivings raised with the review applicant the Tribunal found her to be a generally credible witness and is also satisfied that it is not her intention to support the visa applicant to remain in Australia beyond the cease date of his Visitor visa if it is granted.  The Tribunal also found the visa applicant’s testimony at the conclusion of the hearing, that he will not be overly bothered and will carry on as usual if refused the visa to be genuine.   

41. The Tribunal has also given weight to the review applicant’s willingness to provide a security bond in order to facilitate the grant of the visa.  Notwithstanding its findings above, given the migration history of the related family member discussed above, the Tribunal considers it would be appropriate for the Department to impose a bond as an added security.

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

43. 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

44. 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.

    Tania Flood
    Member