Wasserman (Migration)

[2024] AATA 1109

Wasserman (Migration) [2024] AATA 1109 (3 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Gerald William John Wasserman

VISA APPLICANT:  Mr Laurence Gerald Wasserman

CASE NUMBER:  2317514

HOME AFFAIRS REFERENCE(S):          BCC2023/3583550

MEMBER:Linda Holub

DATE:3 May 2024

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 3 May 2024 at 1:34pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant and compliance with conditions – review applicant’s age and health – visa applicant’s previous multiple visas and compliant travel – working in another country when application made, without access to documentation and unable to apply for police check – wife and extended family in home country – character references provided, but not police certificate – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 Home Affairs on 25 August 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The visa applicant applied for the visa on 25 June 2023. 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 (Cth) (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. The decision also referred to the fact that the visa applicant had not provided certain information to the Department that had been requested of him, including, a Form 80, a South African Police Clearance Certificate and character references from family and friends in South Africa and Australia.

4.    The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.

5.    On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

6.    The review applicant was represented in relation to the review.

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

BACKGROUND

8.    The review applicant was born in Zambia in 1935 and is an Australian citizen by grant. Department records indicate that he first arrived in Australia in December 1997 as a holder of a Skilled (Australian Linked) subclass 105 visa. He became an Australian citizen in November 2005.

9.    In a statement addressed to the Department of Home Affairs and dated 22 October 2023, the review applicant states that he has not seen his son, the visa applicant for some five years and he is now 88 years old with declining health and reduced mobility making him unable to travel to visit his son. The visa applicant is his only living close relative having lost his wife and youngest son.

1. The visa applicant was born in Kabwe, South Province, Zambia. He is married. His wife, adult children and friends reside in South Africa.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting his father. He states in his application that he wishes to visit Australia for a period of up to three months from July to August 2023, as the review applicant is critically ill. In a statement of 29 October 2023, he wrote that his father, who would be turning 89 in January 2024 had undergone surgery for colon cancer, has a diagnosis of prostate cancer and is too ill to fly.

3. The stated reason is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

4. Department records indicate the visa applicant first travelled to Australia in October 1993 travelling on their subclass UA-673 visa and departed in November 1993. In November 1997 his was granted a multi-entry Tourist (subclass 676) visa that was valid until October 1998. He made three return trips on this visa.

5. In January 2000 he was granted a further Tourist (subclass 676) visa valid until April 2000. He made a return trip on this visa. In November 2005 he was granted a further subclass Tourist (TR-676) visa valid until September 2006, and made one return trip on this visa. In May 2012 he was granted a further subclass Tourist (TR-676) visa valid until May 2015. He made two return trips on this visa.

6. In July 2018 he was granted a Visitor (subclass FA-600) visa that was valid until July 2021. He made two return trips on this visa, last departing on 11 September 2019.

7. In all cases the visa applicant complied with his visa conditions.

8. 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)).

9. 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(2):

   ·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.

10. Information before the Tribunal is that the applicant lives with his wife in Ballito, South Africa. In his visa application, the visa applicant stated that he retired in December 2022 and that his travel to Australia would be self-funded.

11. Subsequent information and evidence provided, including in a statement dated 29 October 2023, the visa applicant advised that he was employed as a security manager on a remote bauxite mine in Sierra Leone. He explained that his employment rotation is three months in country, before he returns to South Africa for three weeks of rest. On 2 May 2024, the Tribunal received a copy of the visa applicant’s employment contract. It indicates that on 18 August 2023 the visa applicant accepted a 12-month employment contract as a security manager with Sierra Mineral Holdings and the contract confirms the rotation periods.

12. The visa applicant explained his previous employment history as a member of the anti-terrorist section of the special branch, South African Police Force. He wrote that it is a constitutional police force and not a militia force. A copy of a certificate of service from the South African Police Service was provided to the Department stating that the visa applicant was employed from 4 March 1981 until 31 May 1998.

13. The visa applicant also provided the Department with:

    ·     a letter from the review applicant’s treating doctor at the Mt Barker Medical Clinic outlining his past medical history, dated 06 September 2023.

    ·     a copy of his Republic of South Africa, Marriage Certificate issued 21 November 2013.

    ·     a copy of the visa applicant’s bank statement of 26 June 2023 from the Standard Bank.

14. The Tribunal was provided with statement from the visa applicant dated 29 October 2023 and from the review applicant dated 22 October 2023 and from the review applicant’s granddaughter, Romy Gail Wasserman, dated 19 October 2023. In addition, character references were provided in respect of the visa applicant were provided by Paul Wade, signed and dated 26 September 2023 and John Bishop, dated 28 September 2023.

15. In his statement of 29 October 2023, the visa applicant wrote:

    “I don't have personal documents and paperwork relevant to my previous travels with me here in Sierra Leone. All that documentation is currently in South Africa at my residence. I have no way of accessing it from here in Sierra Leone. This make it very difficult to answer many of the questions as I don't want to guess my answers.

    Some of the answers may be with my immigration agent, Elize Uys, she is assisting.

    1. Form 80 - I refer to the above paragraph as a reference as to why I am unable to fully complete the Form 80. I have no objection to fully complying with providing details but a (sic) unable to do so due to not having the details with me or the means to obtain the details due to my remoteness from my residence.

    2. South African police clearance certificates - I am unable to provide this as I physically have to present myself to a Police station in South Africa to have the fingerprints taken. I am employed in Sierra Leone and there is no South African Embassy or Consulate here. I will apply for a police clearance at a South African Police station immediately upon return.

    3. Character references from family and friends in South Africa and Australia are submitted and have been collated and attached to the AAT review application

    4. I have never been charged with a criminal offence and served prison time at any time during my life span. I have never had to undergo any form of rehabilitation at all - not for anything. I have never had to undergo any psychological assessments or reviews or treatments/therapies at all during my lifetime.

    5. In regard to independent documents to support the s5Ol assessment, I firmly state that I have never been before a court of law or been served with sentencing remarks and court orders”.

16. The statement from Ms Wasserman states that:

    “It is true Laurie did not comply with the request for more information from the Department. It is my belief he was deflated by the perceived knock back and so overwhelmed by the enormity, indeed, the impossibility of the task of completing a Form 80 and other requirements. For example, I say this because Laurie’s security work has taken him to some of the most unstable regions in the world where incumbent administrations are either not set up to administer or would not oblige the requested penal (police) certificates (like the Taliban in Afghanistan).

    Still, Laurie will be applying for South African police clearance as soon as his current work rotation in Sierra Leone is completed and he returns to South Africa. I believe this can take up to 12 months to be issued but Laurie is keen to demonstrate willingness to Australian Immigration”.

17. In respect of the review applicant, letters from his treating doctor at the Mt Barker Medical Clinic dated 6 September 2023 and dated 09 January 2024 were also provided to the Tribunal.

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

Non-disclosure certificate

1. There is a certificate made by a delegate of the Minister under s.375A of the Migration Act on the Department's file. That provision permits the Minister to certify that the disclosure of information would be contrary to the public interest for any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the AAT must do all that is necessary to ensure the document or information is not disclosed to any person other than that to a member of the AAT.

2. The certificate states that it relates to folios 10, 11, 12 and 13 of the Department’s file of BCC2023/3583550, the disclosure of which it states would be contrary to the public interest because they “reveal the identities of officers of the department; the disclosure of which may out the officer’s safety at risk” (sic).

3. Having reviewed the Department’s file, the Tribunal was able to identify the names of a number of Departmental officers on four folios. In each case the documents only refer to the officers’ first names and they are contained in letters previously sent to the visa applicant.

4. Given this, the Tribunal finds that the certificate is invalid and of no effect. The Tribunal is not satisfied that there is a risk to any officer’s safety given only their first names appear on the documents and they are documents that have already been provided to the applicant. Therefore, the Tribunal considers that the reason provided for non-disclosure is not a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed.

Findings

1. Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for up to three months for the purpose of visiting his father. The Tribunal accepts that he is capable of self-funding the visit. The Tribunal accepts that the visa applicant has no intention of working studying or undertaking any training in Australia as he currently holds a 12-month employment contract.

2. The Tribunal finds that the visa applicant’s wife, and extended family as well as his home and employment provide strong incentives for his return to his usual country of residence at the end of his permitted stay in Australia.

3. Condition 8503 refers to entitlement and does not require compliance.

4. Furthermore, the Tribunal has put significant weight on the fact that the visa applicant has travelled to Australia on multiple occasions and has a favourable family history.

5. The Tribunal accepts that the visa applicant intends to comply with the conditions of the visa.

6. 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.

7. In respect of the documents requested by the Department, the Tribunal notes that character references have now been submitted to the Tribunal - including a character reference from Paul Wade dated 26 September 2023 and John Bishop dated 28 September 2023. These will be provided to the Department with this decision. Although it is now some 10 months since the visa applicant claimed that he would be seeking the South African Police Certificate and completing Form 80, there is no evidence before me that the Form 80/South African Police Certificate have been submitted. It is a matter for the Department to follow-up these documents as appropriate.

DECISION

1. 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.

Linda Holub
Member