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0805506 [2008] MRTA
1397
(22 December 2008)
Last Updated: 2 January 2009
0805506
[2008] MRTA 1397
(22 December 2008)
DECISION RECORD
REVIEW APPLICANT: Mr Avinesh Kumar
VISA APPLICANT: Mr Rajesh Kumar
MRT CASE NUMBER: 0805506
DIAC REFERENCE(S): CLF2008/133294
TRIBUNAL MEMBER: T Delofski
DATE: 22 December 2008
PLACE OF DECISION: Sydney
DECISION: The Tribunal affirms the decision not to grant the visa
applicant a Sponsored (Visitor) (Class UL) visa.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
- This
is an application for review of a decision made by a delegate of the Minister
for Immigration and Citizenship to refuse to grant
the visa applicant a
Sponsored (Visitor) (Class UL) visa under s.65 of the Migration Act 1958
(the Act).
- The
visa applicant applied to the Department of Immigration and Citizenship for a
Sponsored (Visitor) (Class UL) visa on 7 August
2008. The delegate decided to
refuse to grant the visa on 21 August 2008 and notified the visa applicant of
the decision and his
review rights by letter dated 21 August 2008.
- The
delegate refused the visa application on the basis that the visa applicant did
not satisfy cl.679.224 of Schedule 2 to the Migration Regulations 1994 (the
Regulations) because the delegate was not satisfied that the expressed intention
of the visa applicant only to visit is genuine.
- The
review applicant (the visa applicant’s brother) applied to the Tribunal on
29 August 2008 for review of the delegate’s
decision.
- The
Tribunal finds that the delegate’s decision is an MRT-reviewable decision.
The Tribunal finds that the review applicant
has made a valid application for
review under s.347 of the Act.
RELEVANT LAW
- The
Sponsored (Visitor) (Class UL) visa contains the Subclass 679 (Sponsored Family
Visitor) visa and the Subclass 459 (Sponsored
Business Visitor) (Short stay)
visa: item 1217A of Schedule 1 to the Regulations. The visa applicant has made
an application only
in respect of the Subclass 679 visa.
-
The Subclass 679 visa is for people seeking to enter Australia for the purposes
of visiting an Australian citizen or Australian permanent
resident who is a
parent, spouse, child, brother or sister of the visa applicant, or for a purpose
other than a purpose related to
business or medical treatment. This visa
subclass allows a relative ( as defined in r.1.03 of the Regulations) or another
permitted
party (as specified in cl.679.214 of Schedule 2 to the Regulations),
to formally sponsor the visa applicant. The criteria for a Subclass
679 visa are
set out in Part 679 of Schedule 2 to the Regulations.
- Relevantly
to this matter, a primary criterion to be met at the time of decision is that
the visa applicant satisfies the Minister
that the expressed intention of the
visa applicant only to visit is genuine: cl.679.224.
- In
considering whether a person satisfies the criteria for a visitor visa, the
Tribunal must have regard to Ministerial Direction
No.36 of 2005 (Direction
No.36 of 2005). This Direction applies to Visitor applications, defined as
including Class UL – Sponsored
(Visitor) visas. The Tribunal must comply
with the Minister’s Directions made under s.499 of the Act to the extent
that they
are consistent with the Act or Regulations.
- Paragraph
8 of Direction No.36 of 2005 specifies relevant considerations for determining
whether an applicant intends a genuine visit.
These may be summarised as
including (but are not limited to) the
following:
(a) personal circumstances that may encourage the applicant to return to his or
her home country, including: on-going employment;
the presence of immediate
family members in their home country; and property or other significant assets
owned in their home country
(b) personal circumstances or other conditions in the applicant’s home
country, that may encourage the applicant to remain
in Australia, including: the
applicant’s economic situation; the applicant’s personal ties to
Australia; military service
commitments; civil or economic disruption in the
applicant’s home country
(c) the applicant’s immigration history, including but not limited to:
previous travel overseas and compliance with, the immigration
laws of countries;
and previous visa applications for Australia, and compliance with the conditions
of their visa
(d) the credibility of the applicant in terms of character and conduct,
including evidence of any false or misleading information
and/or documentation
that has been presented in relation to this or any other visa application
(e) whether the purpose of the applicant's visit, the duration of stay proposed
and any other plans the applicant has made in respect
of their visit are
reasonable, that is, are the activities proposed consistent with business,
tourism and/or visiting friends and
relatives and is the period of stay
consistent with the period of their approved leave (if applicable)
(f) the immigration activities in Australia of other nationals from the
applicant’s home country
(g) intelligence and analysis reports on illegal immigration and malpractice
locally developed at overseas posts.
- Paragraph
9 of Direction No.36 of 2005 states that generally, offers of support or
guarantees given by family and friends in Australia
are not sufficient evidence
of a genuine visit. Notwithstanding this, when such offers have been
investigated and confirmed by the
relevant State or Territory Office,
decision-makers should pay high regard to that advice in assessing the
application.
- Paragraph
27 of Direction No.36 of 2005 states that when considering whether or not the
expressed intention of a visa applicant is
genuine, decision-makers should
consider the circumstances of the proposed sponsor but only if those
circumstances are directly relevant
to the visa applicant’s intention.
Factors might include: has the sponsor previously sponsored a visa applicant and
did that
visa applicant (once granted a visa) abide by the conditions of that
visa? In this respect, the intentions, assurances and history
of a proposed
sponsor might be relevant in the process of forming a view of the intentions of
the visa applicant although it is ultimately
the intentions of the visa
applicant that must be ascertained.
CLAIMS AND EVIDENCE
- The
Tribunal has before it the Department’s and the Tribunal’s case
files relating to the visa applicant. The Tribunal
also has had regard to the
material referred to in the delegate's decision, and other material available to
it from a range of sources.
A hearing was held on 18 December 2008.
- At
the hearing, the review applicant said that the visa applicant wished to visit
the review applicant and his brother in Australia.
The review applicant said
that both he and his brother in Australia were experiencing medical problems. He
said that the visa applicant
had not seen his brothers in Australia for 11
years; his father in Fiji was also worried about his sons in Australia and a
visit
by the visa applicant would allow him to reassure their father.
- The
review applicant said that the visa applicant owns a carrier van in Fiji; the
business had not made him rich but enabled him to
support himself. The review
applicant said that the visa applicant’s only asset was his van; he did
not own any property. He
said that the visa applicant was unmarried with no
children. His father and 2 other brothers lived in Fiji. The review applicant
said that life in Fiji for his father, the visa applicant and his 2 other
brothers was an economic struggle.
- The
Tribunal referred to the delegate’s comment that the review applicant and
his brother had arrived in Australia (in 1997)
on tourist visas, breached their
visa conditions, overstayed their visas and lodged onshore applications to
remain permanently in
Australia. The review applicant agreed this had occurred:
he said that he and his brother had lodged applications for Protection
visas
some time after arriving in Australia; these applications had been refused by
the Department but were eventually granted (in
2005) on review by the Refugee
Review Tribunal.
- The
Tribunal said that the immigration history of the review applicant and his
brother (summarised in the preceding paragraph) may
be a reason for affirming
the decision under review and invited the review applicant’s comment. The
review applicant assured
the Tribunal that the visa applicant would not overstay
his visa because he needed to return to Fiji to look after their elderly
father
and a disabled brother. The Tribunal told the review applicant that he was
entitled to seek more time to comment on the adverse
information identified by
the Tribunal. The review applicant said that he did not need more time; his
comments at the hearing were
sufficient response.
FINDINGS AND REASONS
- As
noted above, the issue in this matter is whether the Tribunal is satisfied that
the visa applicant’s intention to only visit
Australia is genuine as
required by cl.679.224.
- The
Tribunal has had regard to the criteria set out in the legislation and the
evidence relevant to the considerations set out in
the Ministerial Direction.
Based on the evidence, the Tribunal is not satisfied that the visa
applicant’s intention to only
visit Australia is genuine and therefore
finds that the visa applicant does not satisfy the requirements of cl.679.224
In making
this finding, the Tribunal has attached importance to the fact that
the review applicant and his brother in Australia both breached
their visitor
visa conditions and overstayed their visas when they came to Australia. The
Tribunal is also concerned that the visa
applicant’s ties to Fiji do not
provide sufficient incentive for him to return: he is single and has few assets
in Fiji.
DECISION
- The
Tribunal affirms the decision not to grant the visa applicant a Sponsored
(Visitor) (Class UL) visa.
T Delofski
Member
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1397
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