Zorkina (Migration)

Case •

[2018] AATA 4323

•

10 September 2018

Zorkina (Migration) [2018] AATA 4323 (10 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Albina Zorkina

VISA APPLICANT:  Mr Ihor Zorkin

CASE NUMBER:  1713118

HOME AFFAIRS REFERENCE(S):           BCC2017/1638993

MEMBER:Paul Windsor

DATE:10 September 2018

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 10 September 2018 at 2:32pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary stay – sponsored family stream – visit to attend grandson’s baptism and see daughters – incentives to return to Ukraine – close relationship to sister and mother-in-law – satisfactory standard of living – owns house – lives away from politically instable regions – decision under review remitted for reconsideration 

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.231, 600.612

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 19 May 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 3 May 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because, noting the applicant has only one sibling in Ukraine and the balance of his family in Australia; has no previous international travel; has a relatively short tenure in his current employment which offers low remuneration in comparison to similar employment in Australia; the lack of clarity regarding the timeframe/amount of leave granted; and that land is an easily transferrable asset, was not satisfied that the applicant has sufficient incentive to return to Ukraine within the validity of his visa.

  5. The review applicant appeared before the Tribunal on 7 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, Ms Inna Zorkina, and from the visa applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

  6. The review applicant was represented in relation to the review by her registered migration agent.  The representative attended the 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 his daughters and grandson 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)).

  11. As the visa applicant has not previously held an Australian visa, this criterion is not relevant to his circumstances.

  12. 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.

  13. The visa applicant is a 57 year old divorced man who lives in the town of Alchevsk, which is located 43 km from Luhansk, a city near the eastern border of Ukraine and western Russia.  He indicated that he has his sister and his mother-in-law living close by.  The visa applicant said he has a very good relationship with his sister, commenting that they talk every day.  He indicated that he lives in his own house, which he owns, while his sister lives about 2-3 km away in another part of the town.  The visa applicant indicated that he remains on very good terms with his mother-in-law, who is now elderly, and that while she does not reside with him he provides close assistance to her in that every other day he brings her food, groceries and medication, and arranges payment of her bills.  He indicated that his mother-in-law does not have anyone else to assist her and therefore his sister has agreed to assist his mother-in-law while he is in Australia.

  14. The visa applicant advised that he remains in the same employment that he was in when he made the visa application in May 2017.  He commenced this employment in mid-2015.  The applicant indicated that he manages a private store that sells groceries, tobacco, alcohol and cleaning products.  He indicated that he is responsible for buying stock and managing exhibitions that they sometimes have in the store, as well as for managing the six other staff who work in the store.  The applicant indicated that he gets 28 days leave a year and as he did not take any leave last year he is eligible for 56 days’ leave.  He indicated that he would like to visit Australia for six weeks.  The applicant said that another employee would take over his role while he was away.

  15. The Tribunal discussed with the applicant the delegate’s concern that his salary was low in comparison to similar employment in Australia.  The review applicant’s representative indicated that his salary of 8,500 roubles per month equated to about USD 130 (approximately AUD 183).  The visa applicant commented that this is a normal level of salary for their economy and is ‘good enough’.

  16. The Tribunal also discussed with the visa applicant the delegate’s comments in relation to property being an easily transferable asset.  The visa applicant said he is not going to sell his house, commenting that he was born and bred in Ukraine and is not going to leave all that behind.

  17. After carefully considering the visa applicant’s evidence, and other relevant matters as discussed below, the Tribunal was satisfied that he intends to comply with the conditions to which the Subclass 600 visa would be subject.

  18. In relation to ‘other relevant matters’ (cl.600.211(c)) the Tribunal discussed with the review applicant and the visa applicant the current economic, political and security situation in Ukraine.  In this regard the Tribunal drew on reporting from the Department of Foreign Affairs and Trade (DFAT), regarding the economic situation in Ukraine, which indicates that the economy has suffered some significant shocks in recent years, resulting in the overall Gross Domestic Product (GDP) plunging by nearly 100 per cent from 2013 to 2015 (with accompanying increases in inflation and unemployment), from which the economy is still recovering.[1]  The Tribunal also discussed with the review applicant and the visa applicant reporting from DFAT[2] and other sources regarding the political and security situation in Ukraine, and in particular in relation to eastern Ukraine, where the visa applicant lives.  In this regard the Tribunal commented that some analysts consider that Russia’s occupation of Crimea may herald the invasion and occupation of parts of eastern Ukraine, particularly the regions of Lukansk and Donetsk; and that Russia has reportedly assembled 150,000 troops on its border with Ukraine, while Ukraine, which has an army of 139,000 troops, of which only 6,000 are ‘combat ready’, has begun assembling a national guard of 60,000.[3]  The Tribunal also referred to recent reporting regarding the July 2018 US-Russia summit indicating that Ukrainian president Poroshenko had sought to ease his people’s concerns over the summit, ‘despite continuing uncertainty over how US president Donald trump views four years of Kremlin aggression against Ukraine’.  This report also quoted the White House press secretary as saying that sanctions (against Russia) ‘will remain in place until Russia returns Crimea’.[4]

    [1] DFAT, UKRAINE Fact Sheet, DFAT, Ukraine Country Brief, March 2018, ‘In wake of Crimea’s vote, West struggles to anticipate Putin’s next move’ 2013, PBS Newshour, 17 March, ‘Ukraine’s president reassures his worried nation over US-Russia summit’, The Irish Times, 15 July 2018, >

    The review applicant commented that there are a lot of different sources commenting on the situation in Ukraine and while some focus on the problems others say the situation is fine.  She added that her father lives very far from Crimea and says the situation where he lives is fine, that the people work, travel around, and live their lives as before.  She said she last visited Ukraine when the situation started and if people had wanted to leave they would have done so by now.  The review applicant’s sister also commented that where her father lives ‘there is no war’ and that her father helps care for his mother-in-law who lives alone.

  19. The visa applicant commented that there were no security problems whatsoever where he lives.  He said people are working, the schools are open and they have not experienced anything at all like what was mentioned in the political reports.

  20. When asked if there were any other things he wished to raise, the visa applicant said that he has not seen his two daughters for quite some time and would like the opportunity to get to know his grandson.  He said that he would like the Tribunal to believe him that he wants to come and visit his daughters and grandson and then return to Ukraine as he has too many things that connect him to Ukraine.  He said these were his house, his friends, the graves of his parents and his mother-in-law who he has to help.

  21. The review applicant commented that she has been in Australia for over 12 years and has a lot of Ukrainian and Russian friends whose parents have been able to visit them and have abided by the conditions of their visas.  She commented that she can’t understand why she cannot have the same opportunity.

  22. The representative commented that the review applicant’s sister had deferred the baptism of her son so that her father could attend that event should he be able to visit Australia.  She also asked the Tribunal to give weight to the evidence of the visa applicant’s good character demonstrated by his commitment to assisting his mother-in-law, many years after his divorce.  She commented that the visa applicant wishes to visit his family members in Australia but will not jeopardise their circumstances by overstaying his visa.

  23. The Tribunal finds that there are significant factors weighting against the grant of the visa in this case, including the economic, political and security situation in Ukraine, and the applicant’s low level of remuneration.  While the applicant has ties to Ukraine in the form of his sister, mother-in-law, friends and his house, his only children and grandchild residing in Australia also provide strong ties to Australia.  Notwithstanding these’ push factors’, however, on balance the Tribunal accepts the assurances of the review and visa applicants that the visa applicant has a job that provides a satisfactory standard of living in his home area, that he is unaffected by the political and security situation in Luhansk city and other parts of eastern Ukraine, and that his ties to his sister, mother-in-law, friends and home in his case provide a significant incentive for him to return to Ukraine, outweighing the ‘push factors’ outlined above.  The Tribunal accepts, therefore, that the visa applicant genuinely intends to stay temporarily in Australia to visit his daughters and grandson and will abide by the conditions of his visa and return to Ukraine within the validity period of the visa.

  24. 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

  25. 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




Charap, S and Dardan, K 2014, ‘Russia’s unclear motives in Ukraine’, International Institute for Strategic Studies, 3 March, J D 2014, ‘Ukrainian Foreign Minister says chances of war are ‘growing’’, Foreign Policy, 23 March, N 2014, ‘How a Russian Invasion of Eastern Ukraine Might Unfold’, Time, 3 March S L 2014, ‘Ousted Ukrainian leader warns of civil war; Russia adds to forces’, Los Angeles Times, 11 March Ukraine and Russia's military forces’ 2014, CNN, 5 March

Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

Legal Concepts

  • Judicial Review

  • Procedural Fairness

  • Statutory Construction

  • Remedies

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