Sulce (Migration)

[2019] AATA 2604

Sulce (Migration) [2019] AATA 2604 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Valdet Sulce

VISA APPLICANT:  Mrs Rozeta Prendi

CASE NUMBER:  1802147

HOME AFFAIRS REFERENCE(S):           BCC2017/4260851

MEMBER:Paul Windsor

DATE:25 June 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 25 June 2019 at 12:47pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visit parents and brothers – incentives to remain in Australia – economic situation in Albania – credible witness – strong and compassionate reasons to visit Australia – strong ties to home country – presence of husband and son – work commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application by Mr Valdet Sulce for review of a decision made by a delegate of the Minister for Immigration on 10 January 2018 to refuse to grant the visa applicant, Mrs Rozeta Prendi, who is Mr Sulce’s sister, a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. Mrs Prendi applied for the visa on 14 November 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 Mrs Prendi applied for the visa seeking to satisfy the primary criteria in the Sponsored Family 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 visa applicant had not ‘sufficiently demonstrated that a genuine visit to Australia is intended’.  The decision record indicates that the delegate noted that the visa applicant declared that her husband and son will remain in Albania but was not satisfied that this demonstrates the visa applicant intended a genuine visit to Australia.  The delegate also indicated that he could not consider the visa applicant’s claimed employment as incentive to comply with her visa conditions because she provided no evidence to substantiate her claims to be a tailor.

5. Mr Sulce appeared before the Tribunal on 20 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Prendi.  The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.

6. The review applicant was represented in relation to the review by their registered migration agent.  The representative did not attend 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 her parents and her brothers and their families in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. 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)).  As Mrs Prendi has not previously held an Australian visa, this criterion is not relevant to her circumstances.

11. 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.600.612):

    ·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.

12. At the hearing Mr Sulce indicated that his mother, who he said ‘was entitled to an Australian passport’, sponsored his father and him and his brother to Australia in 2002.  Mrs Prendi and another sister did not migrate to Australia as they were married.  Having discussed her circumstances with her at the hearing, the Tribunal is satisfied that Mrs Prendi, who is 51 years of age and lives with her husband and 26 year old son in Korce Albania, where she works as a tailor in the informal sector and where her family both works on and manages sections of the family’s agricultural landholdings, does not intend to work or study in Australia in breach of conditions 8101 or 8201.  The key issue in this case is whether          Mrs Prendi would comply with condition 8531.  For the reasons given below the Tribunal is satisfied that she also would comply with this condition.

13. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  Mr Sulce and Mrs Prendi indicated that their parents are elderly (their father is 86 and mother is 71).  They indicated that their mother has been unwell and recently had major surgery, which left her feeling anxious, and that due to their age and health issues it is not possible for their parents to travel to Albania.  Mrs Prendi wishes very much to be able to see her parents again as soon as possible and her mother wants her daughter to visit her as soon as possible.         Mr Sulce indicated that he guarantees that his sister will not remain in Australia beyond the authorised stay period of any visa granted and commented that he is prepared to put up a bond if that is what is required.  

14. The Tribunal discussed with Mr Sulce and Mrs Prendi country information from the Department of Foreign Affairs and Trade (DFAT) indicating that Albania remains a poor country by European (and Australian) standards, with relatively high levels of unemployment (13.5 per cent) and high levels of debt, and that strong trade and banking sector ties with Greece and Italy make the economy vulnerable to spill over effects from those economies, which has been reflected in a decline in remittances as Albanian workers have returned home following Greece’s economic crisis.[1]  Mr Sulce commented that by Albanian standards his sister’s income is quite good.  He indicated that his sister’s family have their own home, generate income from the work both she and her husband do from home as tailors ($400-500 a month), and the family also generates income (around $10,000 annually) from farmland handed down from their father, some of which they farm themselves and the rest they manage but which is worked by others.  Mrs Prendi indicated that she and her husband have two sewing machines at home and they both work from home as tailors.  She said her 26 year old son who lives with them is studying Economics/Tourism at University but also assists them to work/manage their agricultural landholdings.  She said they rent about half of the land to others and take a percentage of what they grow.  She indicated that they grow apples, wheat and tomatoes.

    [1] DFAT, Albania country brief, >

    The Tribunal asked Mrs Prendi what assurances she could give that she intended to visit Australia only.  She replied that, foremost, she is leaving her husband and son behind and added that she is also leaving her work.  She said she can’t leave her family and she just wants to be able to see her parents because they are elderly and sick and it has been so long since they left Albania and since she has seen them.  She said she is also curious to see how her family members live in Australia.

15. The Tribunal found both the review and visa applicants to be open and frank witnesses.  The Tribunal accepts the evidence indicating that there are strong (and compassionate) reasons for Mrs Prendi wanting to visit Australia at this time.  The Tribunal also finds that the evidence indicates that Mrs Prendi has strong ties to Albania in the form of her husband and son, her employment as a tailor and her responsibilities for working and/or managing the family’s agricultural landholdings.  The Tribunal considers that Mrs Prendi’s financial situation is stable and secure and considers that there are not strong ‘push factors’ that outweigh her significant ties to Albania and would cause her to remain in Australia beyond the stay period authorised by a Visitor visa.  

16. 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

17. 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.

    Paul Windsor
    Member