Sudarsana (Migration)

[2018] AATA 4265

Sudarsana (Migration) [2018] AATA 4265 (20 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ni Putu Primawati Sudarsana

VISA APPLICANT:  Mr Alex Try Christover

CASE NUMBER:  1714396

HOME AFFAIRS REFERENCE(S):           02035268 CLD2017/2478801

MEMBER:Brendan Darcy

DATE:20 September 2018

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 2018 at 8.53am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – economic environment in home country – sufficient savings – no dependents – lack of history of non-compliance – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 4 July 2017 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 21 June 2017. 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 the delegate did not sufficient evidence of a genuine visit, although he accepted the offers of support for the visa applicant to be genuine.  

5. The review applicant appeared before the Tribunal on 18 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant and two witnesses: Mr Trevor Cassidy claiming to be the review applicant’s spouse; and Ni Ni Made Anita Sudarsana, claiming to be the sister of the visa applicant:

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Bahasa Indonesian and English languages.

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.

   Background

9. The visa applicant is an Indonesian national residing in Sempidi Badung on the island of Bail. At the time of the visitor visa being lodged, the visa applicant was a minor born on 30 April 2000. The parents of the visa applicant provided their consent for the visa applicant to travel without them. On departmental file are copies of the visa applicant’s Indonesian passport and his parents’ passports.

10. In this matter, the review applicant is also an Indonesian national, aged 30, who was granted a permanent partner visa in 2016 and is now an Australian citizen. It is claimed that the review applicant shares the same residency in Melbourne as another sister. 

11. The review applicant lodged a review of the delegate’s refusal decision on 7 July 2017, with the decision record attached.

12. At the time of making this decision, the visa applicant had reached the age of majority. 

    Consideration of Evidence

13. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother and to search for an appropriate school for his education and English language development. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

14. 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)).

15. The visa applicant has never visited Australia in the past. Accordingly the Tribunal places no weight on this factor in determining whether the applicant genuinely intends to stay temporarily in Australia while holding a visitor visa.

16. 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.

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

18. Other conditions that may be imposed included:

    ·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.

19. During the scheduled hearing, the visa applicant’s purpose in coming to Australia is to visit his sisters, visit Australia as a tourist, and if possible, to improve his English language skills through a short course, over a three month period. The visa and review applicants claimed that since he completed his studies in secondary education, he was not interest in the time being in pursuing further education.

20. Of the greatest concern to the Tribunal is the economic environment in Indonesia.

21. As discussed in the hearing, the December 2017 report states that the Indonesia continues to face considerable economic challenges. Economic growth has averaged around 5 per cent over the previous decade, which is below levels required to meet Indonesia’s ambitious poverty reduction goals or to absorb new entrants to the labour market each year. While the poverty rate declined by one percentage point annually from 2007 to 2011, it has declined by an average of only 0.3 percentage points per year since 2012. More than 27 million Indonesians continue to live below the poverty line, set at IDR 374,478 (A$35.27) per month. Approximately 40 per cent of the population remains vulnerable to falling below the poverty line.

22. DFAT also reports that large number of documented and undocumented Indonesians seek employment overseas, mainly in the Middle East and Southeast Asia. While accurate numbers are unavailable, estimates put the number of Indonesian migrant workers as high as 4.5 million. Most female migrant workers obtain employment as domestic workers, while male workers work in a variety of sectors including agriculture, construction, and maritime-related industries. The remittances sent back by migrant workers form an important element of Indonesia’s economy – in 2015, remittances from the Middle East were USD3.52 billion, and from Southeast Asia USD2.6 billion.

23. The visa applicant and the review applicant claimed the visa applicant has sufficient personal savings from his work in Bali, amounting to about 500 US dollars per month., and that his accommodation and other costs would be absorbed during his three month stay as he will be residing at the review applicant’s residence. They claim the visa applicant had commitments to his parents’ business; that he has girlfriend in Bali to whom he wishes to return.  The Tribunal notes that the visa applicant’s family resemble middle class Indonesians in that they have a successful business back in Bali and the father of the visa applicant is a salaried school teacher and in that they had little need for remittances.   

24. Nevertheless, in the context of Indonesia’s poor economic environment relative to Australia and as the visa applicant does not have any dependents of his own, it finds that there are some but not strong incentives for the visa applicant to return to Indonesia once his visa expires.

25. Both the review applicant and her sister who provided evidence to the Tribunal provided an account of their own visa history. In the case of the review applicant, she arrived in Australia on a student visa in October 2010, applied for an onshore partner visa which was granted on 26 August 2014 and was later granted permanent residency on 20 August 2016.  Later she became an Australian citizen. The witness (the review applicant’s sister) arrived in Australia on a visitor visa in August 2013 and then departed without overstaying her visa in September 2013. She returned on 13 January 2016  while holding a working holiday visa; then applied for a student which was granted on while she was onshore in April 2017; and this was followed by her applying in early 2018 for an onshore partner which is yet to be processed.  She claimed that she completed her coursework while holding a student visa and was able to submit the academic record. 

26. There is no evidence of non-compliance with previous or ongoing visa conditions imposed on their visas and it is noted the witness orderly returned to Indonesia before the expiry of her visitor visa.

27. While the Tribunal held some suspicions that the review applicant and her sister have cynically employed the visa system to seek out permanent residency, there is insufficient evidence before the Tribunal for it to assess that there is anything irregular or vexatious or unorthodox in seeking these similar but separate pathways towards permanent residency or that it indicates the visa applicant will overstay his visa stay period, breach conditions imposed on his visitor visa or intends to remain in Australia by seeking other migration options.

28. Overall, the Tribunal assesses the written and oral evidence submitted to the Tribunal, including by the witnesses, had been consistent and unhesitant provided. The Tribunal finds the evidence - documentary, written and oral, to have been reliable and credible.

29. It is the view of the Tribunal that these concerns regarding risk factors not to temporarily visit Australia are outweighed by other positive aspects of the case, as discussed.  The Tribunal also gives significant weight to the lack of history of non-compliance with regards to visa history of the review applicant and her sister.

30. Considering the visa applicant’s circumstances overall and for the reasons set out above, the Tribunal is satisfied that the visa applicant’s stated intention to visit Australia temporarily for the express purpose of visiting her adopted mother and step father for the purposes is genuine.

31. 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.

32. The review and visa applicants should be aware that the Tribunal only reached this decision marginally in their favour.

    DECISION

33. 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.

    Brendan Darcy
    Member