Wisundara Mudiyanselage (Migration)

[2021] AATA 3466

Wisundara Mudiyanselage (Migration) [2021] AATA 3466 (20 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Asintha Wisundara Mudiyanselage

VISA APPLICANT:  Mrs Janaki Samanlatha Kumari Konara Mudiyanselage

CASE NUMBER:  1924400

HOME AFFAIRS REFERENCE(S):          BCC2019/3381670

MEMBER:Mara Moustafine

DATE:20 August 2021

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 20 August 2021 at 5:25pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – sponsored family stream – applicant has applied for a Partner visa– visiting husband and children– genuine temporary stay criterion – genuine intention to stay temporarily – strong incentives to depart Australia –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 31 July 2019 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 5 July 2019. 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 (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.

   Evidence before the Department

4. Based on her visa application, the visa applicant is a 51-year-old citizen of Sri Lanka born in Welimada, Uva Province, Sri Lanka. She is married and is seeking the visa to visit family in Australia for up to three months. Since 2016 she has been employed as a schoolteacher at Bandaranayake College. Her trip will be funded by her Australian citizen husband, with whom she will stay in Australia.

5. According to his sponsorship application, the review applicant is the visa applicant’s husband. He is 53-years-old and was born in Luckyland Estate, Sri Lanka and is an Australian citizen. He has been employed as a telephone cable technician for Horizon Tech for over 2 years. He has not previously sponsored any visitors to Australia.

6. Documents submitted to the Department in support of the visa application included copies of identity documents of the visa and review applicants, their marriage certificate, employment records, the review applicant’s bank statements and a copy of his partner visa grant notice, the visa applicant’s birth certificate, leave approval and passport entry/exit stamps from her trip to Nepal and a chart of family members in Sri Lanka and Australia. The visa applicant stated that her previous application for a Visitor visa in 2018 was refused.

7. The delegate refused to grant the visa presently under review on the basis that the visa applicant did not meet cl 600.211 because she was not satisfied that the applicant genuinely intended to stay temporarily in Australia. While the delegate noted that the visa applicant’s mother and three siblings were in Sri Lanka and she was employed by the Education Department there as a teacher since January 2016, she did not consider these factors as sufficient incentives for her to return to Sri Lanka within the validity of her visa when weighed against the presence in Australia of her husband and three children.

   Evidence Before the Tribunal

8. On 1 September 2019 the review applicant applied to the Tribunal for a review of the delegate’s decision, a copy of which he provided to the Tribunal for the purposes of the review.

   The hearing

9. The review applicant appeared before the Tribunal by teleconference on 19 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

10. In his evidence at the hearing the review applicant made the following relevant points:

    ·     He and the visa applicant were originally married in 1992 and divorced on 23 May 2013. He came to Australia on a partner visa sponsored by his second wife in April 2014. They divorced on 29 March 2018 and he subsequently remarried his first wife on 4 December 2018. He and his wife applied for a Partner visa on 28 May 2019.

    ·     The visa applicant is the biological mother of his three children. Their son is an Australian citizen and their daughters are Australian permanent residents. The children want to complete university education in Australia

    ·     The visa applicant wishes to visit Australia to see her family here as they have not seen each other since December 2019 when the review applicant and his children visited Sri Lanka. Since then, they have not been able to visit Sri Lanka because of the COVID-19 pandemic.

    ·     She will return to Sri Lanka within the timeframe of her visa. Neither he, his children or his wife want her to remain illegally in Australia and do not want to do anything that might jeopardise his wife being granted the Partner visa.

    ·     His wife also has incentive to return to Sri Lanka because of her long term employment as a teacher with the Education Department from which she stands to get a valuable pension upon retirement. He clarified that his wife had been working at her current school since 2016 but had been working for the Education Department for 22 years.

    ·     He is ready to provide a bond of $10,000 to $20,000 as security that his wife will depart Australia within her visa period, if required. 

    ·     The review applicant lives with his children in their own house and his wife would stay there during her visit. He has a good income from his job as an NBN subcontractor and owns a van and two cars.

11. As the Tribunal was unable to take evidence from the visa applicant in Sri Lanka due to technical difficulties in connecting the call, the visa applicant was asked to respond in a written statement to the Tribunal’s concerns, in particular her incentive to return to Sri Lanka within the timeframe of her Visitor visa, should one be granted and provide supporting documents, including details of her employment history in Sri Lanka.

12. On 20 August 2021, the visa applicant provided to the Tribunal a signed statement in which she made the following relevant points:

    ·     She was confirmed as a government teacher in Sri Lanka since 1 September 1998 and has been teaching for 23 years and working at her Bandaranayke College since 6 January 2016. She has another 9 years to work as a teacher and to receive a pension at the age of 60. She has assets in Sri Lanka, including a rented house and a car, altogether worth more than 25 million Sri Lankan rupees. If she were to stay in Australia illegally, she would lose her entitlements and her properties. She does not wish to be dependent on her children so needs to save her pension and properties for my future.

    ·     She has an application for a subclass 309 partner visa since 28 May 2018 and is waiting for it to be granted. She believes there is a possibility that the partner visa would not be granted if she stayed in Australia illegally after receiving the Visitor visa.

13. She also provided copies of her service confirmation letter from the Department of Education, payslips, a title deed for her land and her car registration.

14. The review applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

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

18. 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)).

19. The visa applicant has not travelled previously to Australia, so the question of previous compliance is not relevant.

20. 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.

21. The Tribunal has considered the written and oral evidence of the review and visa applicants, as well as all the documentary evidence submitted in support of the application.

22. Based on the documentary evidence provided by the review applicant and oral evidence of both the review and visa applicants at the hearing, the Tribunal accepts that all the expenses for the visa applicant’s trip to Australia will be covered by her husband and she will stay with him and her children during her visit. It accepts visa applicant’s evidence that she does not intend to work or to study while in Australia. In these circumstances the Tribunal is satisfied that the visa applicant intends to comply with condition 8101 and Condition 8201.

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

24. With regard to the visa applicant’s intention to comply with condition 8531, as noted by the Department, the visa applicant has stronger family ties to her husband and children in Australia than her to her mother and siblings in Sri Lanka. By the applicants’ own evidence, the visa applicant has applied for a Partner visa in order to be able to live in Australia on a permanent basis with her family.  However, on the basis of the evidence of both applicants, the Tribunal accepts that the visa applicant does not wish to compromise her ability to access the Department of Education pension she stands to gain on retirement nor put at risk the grant of her Partner visa by remaining in Australia beyond the term of her permitted stay, should she be granted a Visitor visa. It notes that the review applicant has indicated his readiness to pay a sizeable bond as an assurance that his wife would depart Australia within the duration of his Visitor visa.  

25. Having considered all the evidence before it, the Tribunal is satisfied that the visa applicant intends to comply with condition 8531 and will not remain in Australia after the end of her permitted stay.

26. 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

27. 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.

    Mara Moustafine
    Member