Warrell (Migration)

[2018] AATA 5483

Warrell (Migration) [2018] AATA 5483 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sarda Warrell

VISA APPLICANT:  Mr Kishan Kavish Kumar

CASE NUMBER:  1721480

HOME AFFAIRS REFERENCE(S):           BCC2017/2405745

MEMBER:Tania Flood

DATE:29 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 29 October 2018 at 2:41pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting family members – applicant was sponsored by a prescribed person or organisation – genuine intention to stay temporarily – inconsistent evidence – credibility concerns – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulations 1994, r 1.03, Schedule 2, cls 600.211, 600.231, 600.232

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 11 August 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 6 July 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. 600.232 which outlines the requirements for sponsorship of relatives and 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 was refused on the basis that the visa applicant did not meet cl.600.232 because the delegate was not satisfied that at the time of application the applicant was sponsored by a prescribed person or organisation.

5. The review applicant appeared before the Tribunal on 8 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and his mother.  The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   BACKGROUND

8. Background information available to the Tribunal indicates that the visa applicant is a twenty-one year old Fijian male who is seeking a Visitor visa to visit his maternal grandmother.  He is a student at the University of the South Pacific and expected to obtain his Diploma in Accounting in June 2019.  The applicant’s parents and younger brother are residing in Australia.  He lives with his paternal grandmother in Fiji.

9. A statutory declaration by the visa applicant’s paternal grandmother states that she has two sons and two daughters.  One son (the visa applicants father) is residing in Australia and her other son in Fiji has three children, including a disabled child.  Due to this burden she does not live with her son in Fiji and her culture doesn’t allow her to stay with her daughters.  This is why she is living with the visa applicant.  She and her grandson are supported financially by income from the visa applicant’s father’s rental property in Fiji.  She states that the visa applicant, who was included in his mother’s carer visa application as a secondary applicant and held a Bridging visa, left Australia because he wanted to complete his undergraduate studies and didn’t have permission to study while in Australia.  He is determined to finish his course in Fiji and will return to Fiji for this reason.

10. A letter from the visa applicant’s paternal grandmother’s treating doctor states that she has bad osteoarthritis in the knees and osteoarthritis of the back which at times presents difficulty for her and pain.

11. A submission made on the visa applicant’s behalf states that he previously travelled to Australia on a Visitor visa and abided by the conditions of his substantive visas and Bridging visa which was granted based on his carer visa application.  The visa applicant left Australia on his Bridging visa.  His reason to return is to visit his maternal grandmother who was diagnosed with cancer.

    TRIBUNAL HEARING

12. The review and visa applicant’s evidence to the Tribunal is summarised below:

13. The review applicant, who is the visa applicant’s grandmother, first came to Australia in 1993.  She subsequently married an Australian citizen and is now an Australian citizen herself.  However, she separated from her husband after 15 years of marriage.

14. The review applicant lives with her daughter, son-in-law and grandson who are in Australia as holders of Carer visas.  The visa applicant was included in the Carer visa application but decided to return to Fiji because he wanted to enrol in tertiary studies.  The visa applicant’s mother said that when they were advised the Carer visa would be granted they were advised to contact their son to see whether he would return to Australia to be eligible to be granted a visa as well.  She said they discussed this with him but he said he did not want to return.

15. The review applicant has a sister, brother and grandson in Fiji.  She also has sisters who live in Australia.    

16. The visa applicant is living alone in Lautoka in his family home.  When he first returned to Fiji that house was fully tenanted and he lived with his paternal grandmother for a while.  His paternal grandmother was sick at the time he returned but is now a bit better.  He still visits her regularly. 

17. The review applicant testified that her grandson is working as a Manager for CG Patel Warehouse.  He earns around $150 Fiji Dollars per week. 

18. The review applicant testified that her grandson commenced a degree course last year but did not complete it, favouring to work instead.  It was testified that he didn’t complete his studies for financial reasons.  The review applicant undertook to provide evidence of his course enrolment and progression.

19. The visa applicant also derives some income (approximately $280 Fiji Dollars per month) from letting out half of his house in Lautoka.

20. The review applicant testified that her grandson recently commenced a relationship with a girl who studies part-time and works in a jewellery shop. 

21. The review applicant testified that when her grandson was previously in Australia he did not work or study as he was not permitted to do so.  She said that he requested work and study rights but this was not granted. 

22. The visa applicant would like to visit Australia for a few weeks only to see his parents and his little brother as well as his grandmother.   The review applicant stated he has not yet applied for leave from his job to undertake the visit.  The visa applicant’s mother said that his father will fund the travel.

23. Whereas the review applicant was previously being treated for cancer her condition is now improved following chemotherapy and radiation.  However she said the doctors cannot guarantee the cancer will not return.   

24. The review applicant stated that the visa applicant will return to Fiji after the visit because he has a girlfriend now and a job with a well-known company.  Furthermore, he is responsible for the upkeep of the family home and for collecting the rent.

25. The review applicant testified that her grandson is Indian Fijian and a Hindu but said he has not experienced harm in Fiji for these reasons.  Further, she said that he is not involved in any political activity in Fiji.

26. The visa applicant’s mother indicated that they do not have the financial capacity to provide a security bond to facilitate the grant of the visa.

27. The Tribunal also spoke to the visa applicant by telephone.  He testified that he did not undertake any tertiary studies after he returned to Fiji from Australia.  He said that he is currently looking for work but hasn’t been able to find anything.  The visa applicant stated that he is married and that the marriage was legally registered in Fiji.

28. The visa applicant also confirmed he is living in his family home and collecting $280 Fiji Dollars in rent per month from tenants who live at the same house. 

29. The visa applicant confirmed he is Indian Fijian and a Hindu and that this causes him no problems in Fiji.  Further, he confirmed he is not involved in any political activity in Fiji. 

30. When asked if everything he told the Tribunal was true and correct he then changed his evidence in respect of his employment status.  He said that he is doing some casual work for a distant relative in his company, Chands Marketing Supplies. He said he works four to five days a week and earns $150 Fiji Dollars per week.

    CONSIDERATION OF CLAIMS AND EVIDENCE

31. The delegate concluded, in the absence of evidence, that the applicant did not meet the legal requirements in cl.600.232.  In forming this view the delegate also had regard to regulation 1.03 which allows the following individuals to sponsor a subclass 600 applicant: a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.  The delegate found that the nominated sponsor, the review applicant, had not provided any evidence of relationship to the visa applicant which satisfies the definition of ‘relative’ and was therefore ineligible to sponsor the visa applicant under this class of visa.

32. At the Tribunal hearing the review applicant produced evidence, including birth certificates of the visa applicant and his mother, which satisfy the Tribunal that the review applicant is the visa applicant’s grandmother.  Therefore the Tribunal is satisfied that the review applicant is eligible to sponsor the visa applicant’s application for a Visitor visa.

33. The Tribunal has also considered whether cl.600.211, 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 is met, 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.

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

35. 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)).

36. The review applicant first came to Australia on 25 November 1993 as the holder of UA-674 visa.  She departed Australia on 8 January 1994 which was the day her visa ceased.  She returned to Australia on 16 March 1996 as the holder of a Visitor visa. On 7 June 1996 she was granted a Tourist Long Stay visa.  She was granted a series of Bridging visas and on 18 August 1997 she was granted a Partner visa. On 15 April 1999 she was granted another Partner visa.  On 27 June 2001 she acquired Australian citizenship.

37. The visa applicant first arrived in Australia on 3 October 2010 as the holder of a Sponsored Family Visitor visa.  He departed Australia on 31 October 2010 before his visa ceased.  He returned to Australia on 10 January 2015 as the holder of a Visitor visa.  He was granted a series of Bridging visas and departed Australia on 1 December 2015.  He arrived back in Australia on 8 December 2015 and departed again on 2 December 2016 when his last Bridging visa ceased.

38. The visa applicant’s father arrived in Australia on 14 October 2014 as the holder of a Visitor visa.  He remains in Australia.

39. The visa applicant’s mother first arrived in Australia on 3 October 2010 as the holder of a Sponsored Family Visitor visa.  She departed Australia on 31 October 2010 before her visa ceased.  She was granted a further Visitor visa and arrived back in Australia on 14 October 2014.  She remains in Australia.

40. 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.

41. For the following reasons, the Tribunal is not satisfied the visa applicant will comply with condition 8531 or that he genuinely intends to visit Australia temporarily.

42. In view of the inconsistent evidence presented by the review and visa applicants at hearing the Tribunal wrote to the review applicant on 10 October 2018 pursuant to the requirements at s.359A of the Act. The review applicant was invited to comment on or respond to information that would subject to her response be the reason or a part of the reason for affirming the decision under review. Specifically the review applicant was asked to comment on or respond to the following information:

    “Your grandson provided the following oral evidence to the Tribunal on 8 October 2018:

    1.    Since his return to Fiji he has had difficulty finding work and is only working casually (4-5 days per week) with a distant relative who runs Chands Marketing Supplies.

    2.    Since his return to Fiji he has not undertaken any tertiary study.

    3.    He is now legally married and is in possession of a marriage certificate.”

43. The Tribunal advised the review applicant that the information is relevant because it is not consistent with her and her daughter’s evidence to the Tribunal, namely that:

    1.    The visa applicant found work sometime in 2017 as a Manager at CG Patel Warehouse.

    2.    The visa applicant returned to Fiji in order to undertake tertiary studies but recently withdrew from those studies for financial reasons.

    3.    The visa applicant is single although he has been in a relationship for about one and a half years.

44. The Tribunal advised the review applicant in its letter dated 10 October 2018 that if it were to rely on this information it could form the view that the evidence before it is not credible which could cause it to conclude that the visa applicant’s expressed intention to only visit Australia temporarily is not genuine.  The review applicant was invited to made any comments or response to the information in writing by 24 October 2018. As at the time of this decision the Tribunal had received no response to this letter.

45. The review and visa applicant’s provided inconsistent oral evidence in respect of key considerations including the visa applicant’s employment status, his marital status and his claimed enrolment in tertiary studies.  Despite being given an opportunity to account for these differences the review applicant did not respond to the Tribunal’s invitation.  In the circumstances, the Tribunal cannot be satisfied that the visa applicant’s employment, tertiary studies and/or relationship status will act as incentives for him to return to Fiji after a visit to Australia as claimed.

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

47. The Tribunal has concluded that the review and/or the visa applicant have not been truthful in their evidence and this causes the Tribunal to doubt the genuineness of their stated intentions regarding the visa applicant’s proposed visit to Australia.  In the circumstances the Tribunal is not 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 not met.

    DECISION

48. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Tania Flood
    Member