TAMUN (Migration)

[2020] AATA 1938

TAMUN (Migration) [2020] AATA 1938 (19 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Darsiti TAMUN

VISA APPLICANT:  Mr Sulaeman Bin TAMUN

CASE NUMBER:  1808444

HOME AFFAIRS REFERENCE(S):          BCC2018/10550

MEMBER:Melissa McAdam

DATE:19 March 2020

PLACE OF DECISION:  Sydney

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 19 March 2020 at 3:17pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – visa applicant supporting his elderly mother – managing the family’s agricultural business – previous compliant family visits to Australia – stable income from employment – decision under review remitted   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 2 February 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 28 December 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 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 visa applicant provided the following information in her/his visa application:

   a.He is a 31 year old single male from Cirebon in Indonesia. 

   b.His mother, two sisters, and one brother are living in Indonesia.  One sister, the review applicant, lives in Australia.

   c.He wants to visit Australia for up to six months between December 2017 and June 2018 to spend time with his sister and nephews.

   d.He is unemployed but looks after the family firm. There are not many jobs in Indonesia.

   e.His sister and brother-in-law will support him financially in Australia. They will provide his food and a place to stay.

5. The review applicant provided the following information in the visa application:

   a.She is the visa applicant’s sister and the sponsor for his visa application.

   b.She is a permanent resident in Australia.

   c.She is a full-time house wife looking after three young children.

6. The applicants provided copies of the following documents with the visa application:

   i.The visa applicant’s Indonesian passport.

   ii.A letter from the review applicant’s children to the visa applicant stating they may not be able to visit Indonesia. Their mother told them she was sponsoring him to come to Australia to stay in the summer holidays. They look forward to seeing and spending time with him.

   iii.The visa applicant’s Birth Certificate.

   iv.The visa applicant’s Indonesian National ID card.

   v.The visa applicant’s Australian Health Insurance coverage.

   vi.A visa grant notice, dated 20 December 2017, to the review applicant of a subclass 155 Resident Return visa.

   vii.The review applicant’s Indonesian passport.

   viii.The review applicant’s Birth Certificate.

   ix.A Statutory Declaration by the review applicant that the visa applicant is her brother and that she has the financial means and will provide any necessary assistance to ensure he has adequate funds for his visit to Australia.

   x.The review applicant’s Marriage Certificate.

   xi.The review applicant’s husband’s payment summary for the year ending 30 June 2017.

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 the visa applicant’s family members in Indonesia sufficiently demonstrated the visa applicant intended a genuine visit to Australia; the visa applicant’s employment status could not be considered an incentive to return; and he was not satisfied the visa applicant intended a genuine temporary stay in Australia.

   Information to the Tribunal

   Pre-Hearing Submission

8. On 21 February 2020 the review applicant sent copies of the following documents to the Tribunal:

   i.A letter from a Heavy Equipment Rental company in Cirebon stating that the visa applicant works for their co as an ‘operator’ and receives a salary of IDR 4,800,000 per month.

   ii.The review applicant’s bank account statement.

   iii.The visa applicant’s bank account statement.

   iv.A letter from the review applicant stating that the visa applicant is actively supporting their 75 year old mother.  They are very attached to each other. The visa applicant actively participates in community, social and religious events. Others enjoy his company sand make him an active part of gatherings and events.  He has never thought about moving to Australia or any other country.  He has been working as a heavy equipment operator since August 2018. He is the only reliable person in Cirebon to manage the family’s agricultural business.  He has a life of dignity in Indonesia and enjoys that dignity.  He does not feel relaxed with unknown people or in unknown places so does not like to travel. H only agreed to visit Australia because she has asked him to and because he is close to her children.  her husband sponsored his sister to visit Australia in 2012 and she did not breach her visa conditions or overstay.

   Tribunal Hearing

9. The review applicant appeared before the Tribunal on 2 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s husband.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

10. The following is a summary of the information provided by the review applicant at the hearing:

    a.She invited the visa applicant to come to Australia. She has just finished building a house. Her youngest child wants to see the visa applicant. Her mother came here, stayed for two months and went home. The visa applicant will come and then go back to look after their mother.

    b.The visa applicant wants to see her family here and wants to see Sydney. She does not know when she can go to Indonesia to see him.  She was last there about three years ago, when she accompanied her mother home.

    c.She would like the visa applicant to visit for three months at most.  They made a mistake asking for six months.  Her husband filled out the application form.  He was uncertain how much time to ask for.

    d.If he comes to Australia the visa applicant can help the review applicant with the housework and looking after her children.  She has three children aged 18, 15, and 8. 

    e.The visa applicant is responsible for caring for their mother in Indonesia.  He lives with her. 

    f.Their mother’s health is okay. She does not have any illness or disability but she gets tired easily. The visa applicant cooks for her before he goes to work sometimes and sometimes does the laundry. He buys the groceries. When she is well she cooks. 

    g.A younger sibling who is married and has a family also lives nearby. While the visa applicant is in Australia he will look after their mother.

    h.The visa applicant has a job in Indonesia.  He has been working in his job for a few years.

    i.It would be difficult for him to find work in Australia. He only wants to visit.

    j.The visa applicant looks after the family’s land.  He grows vegetables on it for the family to eat.

    k.She would very much like her mother to visit Australia again.

    l.She and her husband could lodge a security bond for her brother’s visit.  If they lost the sum of money it would be financially difficult for them because they have a large mortgage. 

11. The following is a summary of the information provided by the review applicant’s husband at the hearing:

    a.He filled out the visa application for the visa applicant. They have just finished their new house and want their relatives to come to visit it. He gave his wife the first choice to sponsor someone.  

    b.He previously sponsored his sister who came and went back even though she could have applied for refugee status as a Burmese person.  His wife’s mother also visited on a six month visitor visa.  But she left after just two months because she missed her home.  They just want the visa applicant to see how they live here.  Their intentions are to take turns inviting their relatives to visit Australia.  He would like to invite his other three sisters and a brother from Burma to visit. 

    c.It was his mistake to ask for 6 months for the visa applicant.  He didn’t think properly, he just ticked the box next to ‘6 months’.   Less than that, even a month would be fine. He doubts the visa applicant will stay in Australia more than two months.  It will be enough for him after one or two months.

12. The following is a summary of the information provided by the visa applicant at the hearing:

    a.He lives with his mother and younger brother in Indonesia.

    b.He works as an operator.  The company rents out heavy machinery like excavators. He operates the heavy machinery, such as pontoon raft excavators.  He has done this for about 5 years.  He works six days a week and eight hours a day. He was at work on the previous day. They were building a road and he was helping to carry soil.

    c.He is paid in cash.  He cannot submit any other documents to confirm his employment.  He can submit some photographs.  There are many employees at the company who can cover his work while he is on leave.

    d.He has not travelled to any other country before.

    e.He has no political or religious problems in Indonesia.  He has no enemies there.

    f.He will return to Indonesia to look after his mother. He cannot possibly leave her.

    g.He intends to marry one day but is not currently in a relationship.

    h.He has no other responsibilities in Indonesia.

13. The following is a summary of further information provided by the review applicant at the hearing:

    a.Her brother who lives with the visa applicant is divorced.  He only occasionally stays at the house.  He does not provide much care for their mother.

14. On 4 March 2020 the visa applicant submitted some photographs of himself in work clothes near some heavy machinery in a yard or lot.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister and her family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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. The visa applicant has not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by him.

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)). 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.

20. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The Tribunal accepts that the visa applicant has some personal savings and access to sufficient funds, via the review applicant, to support him during a visit to Australia. There is no indication before the Tribunal that the visa applicant intends to work while in Australia. In these circumstances the Tribunal is satisfied he intends to comply with condition 8101.

21. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied he intends to comply with Condition 8201.

22. Condition 8503 refers to entitlement and is not a condition that involves compliance.

23. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

24. The Tribunal accepts that the visa applicant is a single man from Cirebon in Indonesia.  The Tribunal accepts the visa applicant’s mother also resides with him in Indonesia.  The Tribunal considers that the presence of the visa applicant’s mother represents significant incentive for him to return to Indonesia after a short stay in Australia.

25. The Tribunal accepts that the visa applicant has reasonably stable and valued income from his work as an operator at a heavy machinery company and that he would wish to return to and resume his work.

26. The Tribunal notes that the applicants’ mother and the review applicant’s sister-in-law previously travelled to Australia. and that they complied with their visa conditions according to the evidence before the Tribunal.

27. The Tribunal gives substantial weight to the good migration history of the review applicant and other relatives in Australia. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to her family and relatives’ immigration compliance in Australia. 

28. The Tribunal notes the review applicant’s wish to sponsor her mother to visit Australia again in the future.  The Tribunal considers this further motivation for her to ensure the visa applicant does not breach any of his visa conditions and that he departs Australia before the expiry of his visa. 

29. 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

30. 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.

    Melissa McAdam
    Member