Simvol (Migration)

[2018] AATA 5511

Simvol (Migration) [2018] AATA 5511 (1 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Sabina Simvol

VISA APPLICANTS:  Mrs Natalya Stanislavovna Abdullayeva
Mr Amal Emil Abdullayev
Mr Raul Emil Abdullayev

CASE NUMBER:  1826908

HOME AFFAIRS REFERENCE(S):           BCC2018/3145103

MEMBER:Justine Clarke

DATE:1 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the first-named visa applicant’s application for a Visitor (Class FA) visa for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

With respect to the second-named visa applicant, the Tribunal does not have jurisdiction in this matter. 

With respect to the third-named visa applicant, the Tribunal does not have jurisdiction in this matter.

Statement made on 01 November 2018 at 5:55pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visiting family members – genuine intention to stay temporarily –consistent evidence – no jurisdiction in relation to the second and third named applicants – Decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 338

Migration Regulations 1994, Schedule 2, cls 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 30 August 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. On 21 August 2018, the visa applicants—a mother and her two sons—applied for the visas. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. The applicants applied for the visas 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 review applicant is an Australian citizen and is the younger half-sister of the first-named visa applicant. (The Tribunal notes that the review applicant and Mrs Stella Simvol referred to the review applicant and the visa applicant being ‘sisters’ rather than ‘half-sisters’ and the Tribunal uses this language out of respect for their view of the relationship).

5. The review applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211 because it was considered that each visa applicant did not genuinely intend to stay temporarily in Australia for the purpose for which the visa was granted.

6. On 14 September 2018, the review applicant applied to the Tribunal for review of the primary decision. The review applicant was represented in relation to the review by her registered migration agent.

7. On 31 October 2018, the review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence, in person, from Mrs Stella Simvol who is the mother of the review applicant and the first-named visa applicant. The Tribunal also received oral evidence from the first-named visa applicant by telephone from Azerbaijan. The Tribunal hearing was conducted with the assistance of a telephone interpreter in the Russian and English languages. The representative also attended the hearing.

8. For the following reasons, the Tribunal has concluded that, with respect to the first-named visa applicant, the matter should be remitted for reconsideration and that, with respect to the second and third-named visa applicants, the Tribunal does not have jurisdiction in their matters.

   CONSIDERATION OF JURISDICTION

9. The Tribunal has no jurisdiction to review a decision under Part 5 of the Act where the legislative requirements have not been met. Section 347 requires an application for a Part 5 review to relate to a ‘Part 5-reviewable decision’. ‘Part 5-reviewable decision’ is defined in s.338 of the Act. In this case, s.338(7) is the applicable sub-section. Section 338(7)(b) states:

   a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen[.]

10. The review applicant has standing in respect of her application for review of the decision made in respect of the first-named visa applicant’s application for a Visitor (Class FA) visa. This is because the first-named visa applicant (the above-mentioned non-citizen) intends to visit the review applicant and Mrs Simvol (both Australian citizens) who are her sister and her mother respectively.

11. However, the Tribunal has no jurisdiction with respect to the review applicant’s application for review of the decisions made in respect of the second and third-named visa applicants’ applications for the visas. This is because the second and third-named visa applicants’ stated purpose in seeking the visas was so that they could attend the review applicant’s wedding and visit Mrs Simvol. The review applicant is the aunt of the second and third-named visa applicants and Mrs Simvol is their grandmother. These familial relationships are not included in s.338(7)(b).

12. The issue of whether the Tribunal has jurisdiction with respect to the second and third-named visa applicants was not discussed at the hearing. However, the Tribunal notes that the Department’s letters of 30 August 2018 which were sent to the second and third-named visa applicants attaching each respective primary decision stated that there is no right of merits review for each of those decisions. Further, a file note on the Tribunal’s file evidences that, on 21 September 2018, an officer of the Tribunal informed the representative of the issue and the representative as having stated that she would inform the family about the issue. The Tribunal notes that oral evidence given at the hearing suggests to the Tribunal that the review applicant, Mrs Simvol and the first-named visa applicant were aware that if this review was successful and the matter remitted to the Department for reconsideration, that only the first-named visa applicant would be granted a visa if subsequently one were to be granted.   

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. Accordingly, the issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the first-named visa applicant (hereafter the ‘visa applicant’) genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether she has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by her was subject; whether she intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

14. The visa applicant seeks the visa for the purpose of attending her sister’s wedding on 11 November 2018 and visiting her mother. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

15. At the hearing, the Tribunal explained to the review applicant the requirements of cl.600.211 and the matters relevant to its assessment. The Tribunal told the review applicant that the primary issue for it to consider in determining the review application was whether the visa applicant genuinely intended to visit Australia temporarily.

16. In assessing the issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s file as well as the oral evidence given at the hearing.

    Clause 600.211(a)

17. 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).

18. Both the review applicant and Mrs Simvol gave oral evidence that the visa applicant had not travelled to Australia before. The Tribunal also notes that a Tribunal officer was unable to locate any movement records for the visa applicant which suggests that the visa applicant has not travelled to Australia before. Accordingly, the Tribunal finds that the visa applicant has not previously been granted a visa for Australia and therefore there is no evidence of any failure to comply with the conditions of any previous visa. Accordingly, cl.600.211(a) is not relevant in this case.

    Clause 600.211(b)

19. 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).

20. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than three 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.

21. There is no information before the Tribunal suggesting that the visa applicant would engage in any work in Australia or any study or training in Australia for more than three months. There is also no evidence before the Tribunal that the visa applicant would be entitled to a substantive visa, other than a protection visa, whilst in Australia. Based on the evidence before it, which is set out below, the Tribunal is satisfied that the visa applicant will not remain in Australia after the end of any permitted stay.

22. The Tribunal discussed the four conditions with both the review applicant and Mrs Simvol at the hearing. The review applicant gave oral evidence that she was honestly of the opinion that the visa applicant would comply with all conditions. Mrs Simvol also told the Tribunal that she was of this opinion.

23. When the Tribunal asked the review applicant about the purpose of the visa applicant’s visit to Australia, the review applicant told the Tribunal that she is getting married on 11 November 2018 and that her wedding has served as a reason for the visa applicant to join the family for the celebrations and to reconcile with their mother. She told the Tribunal that she has a small immediate family in Australia and that it would mean a lot to her if her sister could attend. She also gave oral evidence that their mother was very keen to reconcile with the visa applicant and she said that she (the review applicant) wanted this too as she knows that her mother has felt very guilty for having left the visa applicant in Azerbaijan when she moved away. She noted that her mother had never met her grandchildren—the second and third-named visa applicants—and was also ‘dying to meet them’.

24. When the Tribunal asked the review applicant about planned arrangements if the visa applicant were granted the visa, she said that the visa applicant would be welcome to stay with her and her partner at their four-bedroom home. She said that she and her partner had also offered to support the visa applicant financially while she would be in Australia. She noted that the accommodation would be free so the visa applicant would only really need food. The Tribunal notes the documentary evidence submitted in support of the review applicant’s oral evidence.

25. The Tribunal also asked the review applicant why the visa applicant would return to Azerbaijan if granted a visitor visa to Australia. The review applicant told the Tribunal that she was of the honest opinion that the visa applicant would not seek to remain in Australia after the end of any permitted stay. She noted that the visa applicant has her own life in Azerbaijan and that most of the visa applicant’s biological family—including her elderly grandmother who had raised her, with whom she is very close and currently lives with and cares for—live there. She noted that the visa applicant was a little more estranged with her family members in Australia. She noted that seeking to remain in Australia would necessitate the visa applicant starting all over again and she said that the visa applicant did not want to do that. She said that the visa applicant was happy with the life that she had made for herself in Azerbaijan. Further, she noted that the visa applicant would not want to separate her children from their father given that the visa applicant herself had grown up with parents living in different countries.

26. Mrs Simvol told the Tribunal that the visa applicant was planning to come to Australia to visit family rather than to seek work, to study or to apply for a substantive visa in Australia. She noted that she had been estranged from the visa applicant and the second and third-named visa applicants but that she was now in contact with the visa applicant and that the review applicant had been instrumental in healing the relationship. She said that she wanted the visa applicants to visit Australia. She said that her daughter (the review applicant) had to have her sister beside her on her wedding day. She said that she, her husband, her son and her daughter (the review applicant) and her partner had invited the visa applicant to Australia and so would support her financially while here, including accommodating her in the review applicant’s house or in her own (Mrs Simvol’s) house.

27. When asked why the visa applicant would return to Azerbaijan if granted a visitor visa to Australia, Mrs Simvol gave oral evidence that the visa applicant adored her grandmother who had raised her (even calling her ‘mother’) and she believed that the visa applicant would never leave her. She said that the visa applicant’s entire life was in Azerbaijan. She said that she understood that the visa applicant had a good income and could afford to go on overseas holidays (to Georgia two or three times and to another country with a friend) and that the visa applicant had said words to the effect that she was ok financially.  

28. The Tribunal experienced some problems in receiving the visa applicant’s oral evidence. It was difficult to determine the cause of the problems. The representative informed the Tribunal that she is a qualified Russian interpreter and the Tribunal notes that during the hearing she noted her concern that two phrases had not been interpreted correctly. So, it may be that some of the problems stem from interpretation. It is also possible that the problems stem from other issues such as the Tribunal using a telephone interpreter rather than an interpreter in person in the hearing room or possibly from the visa applicant not being fully cognisant of the need for her to answer all of the Tribunal’s questions in a fulsome manner. 

29. These problems meant that the Tribunal had limited time to hear from the visa applicant. Notwithstanding, with respect to the matters about which she was questioned, the visa applicant gave oral evidence that was largely consistent with the review applicant and Mrs Simvol. She told the Tribunal that she wants to come to Australia to attend her sister’s wedding and to see her mother. She denied having any intention of staying on in Australia permanently. She said that she would miss her grandmother in Azerbaijan. She also noted that she had a good job in Azerbaijan and that, when this was combined with the alimony from her former husband, she and her children could enjoy a good life. She noted that she had sufficient income to go on holidays and noted her trip to Turkey.

30. The Tribunal found the review applicant and Mrs Simvol to be highly credible and largely consistent in their evidence. The Tribunal accepts the review applicant’s explanation offered at the end of the hearing that some inconsistencies in the evidence (for example, details about which countries the visa applicant has travelled to) stem from the different parties knowing slightly different things. Although there were clearly some problems in receiving the visa applicant’s oral evidence, the Tribunal has no reason to doubt the visa applicant’s credibility. The Tribunal considers the reasons provided by the parties for the visa applicant’s proposed visit to be plausible.

31. The Tribunal accepts that the visa applicant’s family ties in Australia provide some incentive for her to remain. However, the Tribunal considers that the visa applicant’s incentive to return to Azerbaijan appears greater. She has her paternal grandmother there who relies upon her for care and support. Her two sons are in Azerbaijan and are committed to their education there (the Tribunal notes both the oral and documentary evidence that was given in this regard). Further, the evidence suggests that the visa applicant’s financial situation in Azerbaijan is very good and set to improve further when she inherits her paternal grandmother’s apartment (the visa applicant gave oral evidence about this).

    Clause 600.211(c)

32. The Tribunal has also considered all other relevant matters, pursuant to cl.600.211(c).

33. During the Tribunal’s scan of country information it has not been able to identify any cause for concern in terms of economic and social conditions or security or other civil disruption in Azerbaijan. Indeed, when the Tribunal discussed this research with the review applicant, the review applicant told the Tribunal that during her travels to Azerbaijan in 2010 that it had felt European to her and that the centre of the city in Baku was like Italy. She noted that the capital city had hosted Eurovision in 2011 and that there had been massive growth and that there were a lot more opportunities there now than when her family had left when she was an infant.    

34. Mrs Simvol also gave oral evidence that Azerbaijan was ‘a very good country’ and that she did not believe that the visa applicant would necessarily prefer to live in Australia.

    CONCLUSION

35. After considering all the evidence before it, including the visa applicant’s personal circumstances, on balance the Tribunal considers that the visa applicant’s strong family ties and known and comfortable lifestyle in Azerbaijan form a stronger incentive for her to return to her home country at the end of the visa period than to remain in Australia with family members here. Overall, having regard to the specific circumstances of this case, the Tribunal does not share the delegate’s concerns.

36. 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.

37. Given the circumstances in which the review applicant’s wedding will be held on 11 November 2018 and she would dearly love her half-sister to attend and participate in the wedding, any efforts the Department of Home Affairs may make in expediting this case would be appreciated.

    DECISION

38. The Tribunal remits the first-named visa applicant’s application for a Visitor (Class FA) visa for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    With respect to the second-named visa applicant, the Tribunal does not have jurisdiction in this matter.

    With respect to the third-named visa applicant, the Tribunal does not have jurisdiction in this matter.

    Justine Clarke
    Member