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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

  1. 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).
  2. 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.
  3. 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.
  4. The review applicant (the visa applicant’s brother) applied to the Tribunal on 29 August 2008 for review of the delegate’s decision.
  5. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  1. 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.
  2. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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

  1. 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.
  2. 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

  1. The Tribunal affirms the decision not to grant the visa applicant a Sponsored (Visitor) (Class UL) visa.

T Delofski
Member


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