Subasinghe Mudiyanselage (Migration)

[2019] AATA 5856

Subasinghe Mudiyanselage (Migration) [2019] AATA 5856 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Bhanuka Eranda Subasinghe Subasinghe Mudiyanselage

VISA APPLICANT:  Mr Harsha Prabhakara Subasi Subasinghe Mudiyanselage

CASE NUMBER:  1810091

HOME AFFAIRS REFERENCE:               N18/01161944

MEMBER:Rosa Gagliardi

DATE:20 September 2019

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 20 September 2019 at 9:07pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – substantial compliance with last substantive visa conditions – previous three year bar from returning to Australia – failure to renew Student visa – applicant’s heavy involvement in father’s businesses – property ownership in Sri Lanka – decision under review remitted        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.621, 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 6 March 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 February 2018. 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 (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 he/she did not accept that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant/sponsor appeared before the Tribunal on 27 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

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

   Background

10. The applicant is a national of Sri Lanka and is 29 years of age.  He resides with his parents in Kadawatha, Sri Lanka.  His brother Bhanuka is an Australian and Sri Lankan national, presently residing in Australia with his wife. 

11. The applicant has previously travelled to Australia on 28 July 2011 as the holder of a Higher Education Sector (subclass 573) visa and was enrolled to study a Bachelor of Information and Communication Technology at Swinburne University, Hawthorn.  He commenced his studies in Semester 2, 2011 and performed well in his initial units.  Towards the end of his course, however, the applicant’s performance declined, failing several units.  The applicant has claimed that this was due to his age and immaturity at the time as he was only 19 years of age when he first arrived in Australia and it was the first time he had been out of home. 

12. It is claimed that the applicant approached his university administration in July 2013 to seek their advice and assistance as to how to renew his Student visa, which was due to expire on 31 August 2013.  He was provided with a further Confirmation of Enrolment (COE) and the applicant argues that he mistakenly at the time believed that this was all that was required to renew his student visa.  He did not look closely at the COE and it is alleged that as the document had been issued by the Australian Government, he incorrectly assumed that it was a student visa extension and that his visa had been renewed in accordance with the dates listed on the COE – until 30 June 2014.

13. It is claimed that the applicant came to realise he did not have a visa when he discussed it with his brother, the sponsor.  They undertook a VEVO check and did not locate the applicant’s details.  The applicant then sought Ministerial Intervention to be granted a Visitor visa so that he could apply for a further Student visa.  The Minister, however, did not consider that the case met the relevant guidelines and did not intervene.  The applicant then departed Australia on 21 January 2015 as required as the holder of the Bridging visa E.  He was therefore barred from returning to Australia or 3 years.  The ban under Public Interest Criteria (PIC) 4014 expired on 21 January 2018.

14. The applicant applied for this Visitor visa on 20 February 2018.

    cl.600.211(a)

15. 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).

16. The Tribunal has heard the applicant’s claims that he never intended to be in Australia unlawfully and that he just assumed from his COE that he had a visa to study.  The Tribunal has also taken into account that the applicant was young when he came to Australia.  Notwithstanding, it is incumbent on all students, regardless of their age, to be aware as to whether or not they have a visa that allows them to be in Australia.  The applicant gained a benefit in terms of his studies when he had no right to do so.  Further, the applicant’s brother, the sponsor, could have ensured that the applicant was at all times lawfully in Australia.  The sponsor’s and the applicant’s negligence or wilful blindness in this regard is something the Tribunal places adverse weight on.

17. Evidence has also been submitted to indicate that the applicant has travelled to Thailand in 2015 as well Singapore and Malaysia in 2018.  The Tribunal places limited weight on this pattern of travel, however, as the Tribunal is unaware that the applicant has family members in these countries which would act as a motivating factor for him to remain in such countries.  Nor is the Tribunal aware that the applicant started studying in these countries as did the applicant in Australia.

18. On the other hand, the Tribunal notes that the sponsor’s family members have visited Australia, and the Tribunal does not have adverse information regarding their compliance with their visa conditions.  These family members include: the applicant’s and sponsor’s father and mother; the sponsor’s wife’s uncle; the sponsor’s wife’s sister (aged 43 years); the sponsor’s wife’s nephew (aged 14 years); and the sponsor’s wife’s niece, also 14 years of age.

19. The Tribunal places weight on the fact that despite the sponsor’s previous disengagement with the applicant’s visa conditions, he has undertaken to be more rigorous in the monitoring of the conditions of the visas on which the sponsor’s family members come to Australia.  Given the sponsor and his wife have a history of sponsoring family members any non-compliance by the applicant on this occasion would mean that others would likely be prohibited from returning to Australia.  The Tribunal accepts that the sponsor has no incentive on this occasion to allow the applicant to remain in Australia beyond the terms of his visa conditions, given the adverse effect it would have on other family members ever returning to Australia.

    cl.600.211(b)

20. 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)).

    ·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.

21. The Tribunal notes that even though the Minister did not intervene in his case the applicant was able to obtain a degree in Australia (some of which he was not entitled to undertake in any event).  Nonetheless, it is not the Tribunal’s role to punish the applicant for his past conduct.  It is required to fairly assess all the evidence before it to assess whether the applicant currently genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

22. Upon leaving Australia the applicant in Sri Lanka has maintained continuous employment utilising his Australian qualifications and working in areas of IT and software engineering.  On return to Sri Lanka the applicant was employed as a Junior Software Engineer at the University of Colombo, School of Computing (evidence sighted).  He has also worked in his father’s company SML Business Solutions and has worked as a consultant undertaking freelance work for various companies.  He was promoted at his father’s business as SML Business Solutions and acquired 50% ownership of the company.  As a result, in addition to his salary, the applicant receives 50 per cent of the business profits from October 2017.  In addition, from 1 April 2017 the applicant took over managing his father’s other business, KT Subasinghe & Company.  This work history has been meticulously documented and submitted to the Tribunal as evidence. 

23. It is argued that under the stewardship of the applicant, his father’s companies (some former) are now highly profitable, even though the applicant’s father has always been a highly successful businessman.

24. The Tribunal accepts that the applicant is heavily invested in managing his father’s businesses and is persuaded by the evidence that the applicant does not have an intention to remain in Australia on an ongoing basis.  Having regard to the applicant’s bank accounts, the Tribunal also accepts that the applicant’s circumstances are comfortable enough such that he can live without needing to resort to working in Australia unlawfully.

25. The evidence submitted shows that the applicant has purchased a property which is being built and is due to be completed in 2020.  It is claimed that the applicant wishes to move into this apartment on its completion (apartment contract sighted by Tribunal). 

26. The Tribunal initially had concerns that the applicant had unfinished business in Australia in terms of his studies and that he may be coming to change his status onshore to continue further study in Australia.  Nonetheless, the Tribunal has taken into account that in 2018 the applicant commenced a Diploma in Business Management at the International College.   Together with his business involvement in Sri Lanka the Tribunal is satisfied that it would serve the applicant no purpose to undertake higher studies in Australia and then re-start a career here.

    cl.600.211(c)

27. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  On the strength of the evidence the Tribunal is satisfied that the applicant genuinely intends to visit his brother and wife in Australia to celebrate the purchase of their new home.  Nonetheless, given the applicant’s and sponsor’s previous conduct, and to put the matter beyond doubt, the Tribunal recommends that the applicant provide a substantial security to ensure compliance with his conditions.

    Conclusion

28. 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

29. 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.

    Rosa Gagliardi
    Member