Sheik Mohammed (Migration)

[2021] AATA 3768

Sheik Mohammed (Migration) [2021] AATA 3768 (4 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Imtiaz Sheik Mohammed

VISA APPLICANT:  Mr Iftikar Sheik Mohammed

CASE NUMBER:  1922982

HOME AFFAIRS REFERENCE(S):          CLD2019/66430284 CLF202060006

MEMBER:Mara Moustafine

DATE:4 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 04 September 2021 at 4:14pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant visits by applicant and family – import business development plans – applicant nominated in a Business sponsorship – work and family commitments in Fiji – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 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 8 August 2019 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 16 July 2019. 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.

   Evidence before the Department

4. Based on his visa application, the visa applicant is a 39-year-old citizen of Fiji, born in   Labasa, Macuata, Fiji. He is seeking a visitor visa for about three months to visit his brother, the review applicant, with whom he is very close and has not seen since he last visited Australia six years ago. His brother, the review applicant, will support his trip and all costs during his stay, as he did on previous visits. He also has a sister in Australia. Since March 2019 the visa applicant has been self-employed as manager of the Suva Emperor Engineering Company which he is operating together with his brother.   

5. He stated that he has visited Australia previously and abided by all visa conditions. He indicated that he had previously been refused a student visa but that he now had no intention of undertaking study in Australia. He has an elderly mother in Fiji, whom he looks after. He wishes to visit his brother to have a holiday together and discuss more plans for their business project in Fiji. His brother’s plan was for him to be educated in English because their joint project needs a professional approach. However, he will be based in Fiji and has no intention to break any rules.

6. Documents provided to the Department in support of the application included an invitation letter from the review applicant dated 19 June 2019 on the letterhead of his company, Sydney Emperor Engineering, stating he could financially support his brother’s visit; copies of the review applicant’s payslips, his Commonwealth Bank statement and the biodata page of his passport. Copies of the visa applicant’s passport, birth certificate and the company registration and licence of Suva Emperor Engineering Fiji, were also provided.

7. 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 that the applicant genuinely intended to stay temporarily in Australia. Noting the presence of close family members in Australia, the absence of evidence of personal income, savings or assets and the fact that his business was only recently established, the delegate was not satisfied that the visa applicant had sufficient incentive to return to Fiji at the end of his visit. 

   Evidence before the Tribunal

8. On 19 August 2019 the review applicant applied to the Tribunal for a review of the delegate’s decision, a copy of which he provided to the Tribunal for the purposes of the review.

9. Supporting documents submitted with the application included documents previously submitted to the Department, including the review applicant’s invitation letter affirming that he would cover the costs of his brother’s visit, his Commonwealth Bank statement and documents related to company registration in Fiji of Suva Emperor Engineering on 14 February 2019.

10. On 19 August 2021 the review applicant’s newly appointed legal representative provided a submission in which he noted that:

    ·the visa applicant had visited Australia on 9[1] previous occasions and complied with his visa conditions, including returning to Fiji within the visa validity period.

    ·The visa applicant had a steady job and good income.

    ·the review applicant had previously sponsored his mother, sister and the review applicant for visitor visas to Australia and they had all complied with his visa conditions, as had other family members who had visited Australia in the past.

    ·Both visa applicant and review applicant were determined to maintain an unblemished family immigration record. 

    [1] Corrected at hearing to 6 occasions

11. Supporting documents provided included the visa applicant’s resume, a work reference from Newmart dated 20 March 2021 stating that the visa applicant had been working as a senior welder since May 2015 and several Westpac Bank electronic transaction account statements in the period from 18 March to 28 July 2021, including entries for wages paid by Newmart, with a final balance of 0.55 cents.

    The hearing

12. The review applicant appeared before the Tribunal by teleconference on 26 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Fiji.

13. The review applicant was represented in relation to the review by his legal representative, who attended the hearing.

14. In their evidence at the hearing the review and visa applicants made the following relevant points:

    ·     The visa applicant wished to visit Australia for a couple of weeks to visit his siblings as well as to discuss the business which the review applicant had set up for his brother in Fiji to supply earthmoving equipment from Australia.

    ·     The visa applicant had full-time employment in Fiji with Newmart Auto Sales. The review applicant said his brother had been working for the company, which he described as a timber-logging company, for over 5 years, The visa applicant said he had been with the company for over 3 years and that the company provided spare parts and servicing, as well as timber trading and logging. 

    ·     The visa applicant was also was trying to establish his own business, Suva Emperor Engineering, to service heavy machinery with parts from Australia.  It was started in February 2019 and was still in start-up phase. 

    ·     Apart from the Student visa, which had been refused, the visa applicant had not applied for any other visas to Australia except the visitor visas.

    ·     The review applicant said he would pay for his brother’s visit and ensure that he returns to Fiji and would not do anything illegal which might jeopardise the prospects of other family members visiting Australia.

    ·     The visa applicant’s incentives to return to Fiji were his work for Newmart and his new business. In Fiji he lived with his mother in their own house and had a car. He also had sisters in Fiji but not nearby. He did not have a partner or children.

    ·     The visa applicant said he had no intention to stay in Australia, only to visit because he liked Fiji and he could not take the hot weather in Australia. The review applicant said his brother did not want to come and live in Australia, where his only option would be to work for someone; that, as he was almost 40 years old, it was too late for him to start a new life in Australia and that he was very attached to his mother and could not live without her.

15. In accordance with s359AA of the Act, the Tribunal drew to the review applicant’s attention information from Department records which indicated that on 24 March 2020 the visa applicant had been nominated for a GK482 (Medium Term) visa under a Business Sponsorship by Antoun Civil Engineering to fill the position of welder. It noted that the relevance of the information was that it might raise doubts about the veracity of the evidence given by the review and visa applicants regarding the visa applicant’s intention genuinely to stay temporarily in Australia.

16. The review applicant said he did not know anything about this application and declined to comment on the information. His legal representative requested, and was granted, an extension of time to provide a post-hearing submission.  

17. In his submission of 2 September 2021, the representative responded as follows:

    The Tribunal put to the visa applicant information relating to a temporary skills shortage-nomination (482). Prior to this information being put to  him, he was asked whether he had applied for any other type of visa, to which he responded that had not previously applied for any other type of visa.

    In addressing the adverse information and the Tribunal’s concerns in relation to the visa applicant’s response, we respectfully submit the following:-

    A temporary skills shortage-nomination (482) has been lodged with the Department of Home Affairs (Department) on 24 March 2020, nominating the visa applicant. However, the associated short 482 visa is yet to be lodged.

    Although the nominating company was keen to sponsor the visa applicant, he no longer has any intention of lodging an associated 482 visa.

    Such  intent is evinced by the fact that despite the nomination being lodged with the Department as far back as 24 March 2020, no associated 482 visa application has been lodged.

    The visa applicant does not have any interest in pursuing the 482 visa and wishes to focus on his business activities and current employment in his home country.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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.

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

21. 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)).

22. Based on his evidence and Department records, the Tribunal accepts that the visa applicant has visited Australia on 6 previous occasions, the last time being in September 2012 and complied fully with the conditions of his visa.

23. 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)), which in the circumstances of this case (cl 600.611(3)) would be: 8101 – must not work in Australia and 8201 – must not engage in study or training in Australia for more than 3 months. The Tribunal must also consider all other matters relevant to the visa applicant’s genuine intention to stay temporarily in Australia for the purpose for which the visa is granted (cl 600.211(c)).

24. In this context, the Tribunal has serious concerns about key aspects of the visa and review applicants’ evidence which raise doubts about its truthfulness and overall credibility.

25. In discussion of key incentives for the applicant to return home at the end of his visit to Australia, both the visa and review applicants identified his full-time employment in Fiji with Newmart Auto Sales, as well as his own company Suva Emperor Engineering. The Tribunal notes, however, that his employment with Newmart was introduced for the first time in documents provided with the representative’s submission to the Tribunal of 19 August 2021 (paragraph 11). At hearing the visa applicant said he had been employed by the company for ‘over 3 years’. By contrast, the visa applicant’s original application, only mentioned that he was self-employed as manager of Suva Emperor Engineering since March 2019 and, contrary to the review applicant’s claim at hearing that the documentary evidence from Newmart was submitted to the Department, there is no such evidence on the Department file.

26. The Tribunal finds it implausible that if the visa applicant had been employed as a welder by Newmart since May 2015, as noted in the work reference, he would have failed to mention this in his original visa application submitted in July 2019 or given a more accurate figure for the term of his employment than ‘over 3 years’.  Based on the bank statements provided, the Tribunal accepts that the visa applicant has received wages from Newmart in the period between 18 March and 28 July 2021. However, in light of the above, the Tribunal does not give weight to the work reference from Newmart that he has been employed full-time as a welder by that company since May 2015.

27. Further, as discussed at hearing in accordance with 359AA of the Act, the visa applicant’s nomination for Business Sponsorship for a Temporary Skills Shortage 482 (Medium Term) visa by Antoun Civil Engineering lodged 24 March 2020 raises doubts about the veracity of the evidence given by the review and visa applicants regarding the visa applicant’s intention genuinely to stay temporarily in Australia. 

28. The Tribunal has had regard to the representative’s post-hearing submission which confirms that the nomination was lodged but asserts that the visa applicant no longer has any intention of lodging an associated 482 visa and wishes to focus on his business activities and current employment in his home country.

29. Notwithstanding that no associated 482 visa application has been lodged by the visa applicant, in the Tribunal’s view, his nomination for a 482 (Medium Term) visa, which would enable him to live in Australia for up to 4 years, is inconsistent with his evidence at hearing that he only wished to visit Australia and had no intention of staying here because he could not take the hot weather in Australia and was committed to his work in Fiji and looking after his mother there. It also undermines the review applicant’s evidence that his brother did not wish to come and live in Australia as it was too late for him to start a new life here and that he could not live without his mother. The Tribunal also finds dubious the review applicant’s claim at hearing that he knew nothing about his brother’s nomination by Antoun Civil Engineering, given that the Commonwealth Bank statement he submitted to the Department and the Tribunal (paragraphs 6 and 9) indicates that he himself received wages from that company. 

30. The Tribunal has also considered, but is not persuaded by, the representative’s submission that the visa applicant’s lack of intention to pursue the 482 visa is evidenced by the fact that no associated 482 visa application has been lodged, despite the nomination being lodged with the Department as far back as 24 March 2020. In view of the continued closure of Australia’s borders to non-nationals and non-residents due to the COVID-19 pandemic since 19 March 2020, the Tribunal considers that it would be a costly but pointless exercise for the applicant to lodge an associated 482 visa at this time. 

31. In view of the conflicting information regarding the visa applicant’s employment and business interests in Fiji and his poor financial situation, the Tribunal is not satisfied that applicant has demonstrated strong financial and employment ties which would provide a strong incentive for him to return to Fiji at the end of an authorised temporary stay, as claimed.

32. For the reasons discussed above, 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

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

    Mara Moustafine
    Member