Migration Review Tribunal Decision Summaries
Australian Immigration - Other visas
July 2010
1002885
8 July 2010, Sydney
Ms S Pinto, Member
SPONSORED (VISITOR) (CLASS UL) – SUBCLASS 679 – SPONSORED FAMILY VISITOR – CL.679.224 – GENUINE VISIT – A delegate of the Minister refused to grant the applicant a Sponsored Family Visitor visa on the basis that the review applicant (her son) had an adverse immigration history. Therefore, the delegate was not satisfied that the visa applicant’s expressed intention only to visit Australia was genuine. In her application, the visa applicant claimed she wished to visit Australia for the birth of the review applicant’s third child. The visa applicant indicated that her parents and three siblings reside in Australia and her remaining four siblings reside in Lebanon. The visa applicant’s eldest son resides in Brazil, the review applicant resides in Australia and her other two sons reside in Lebanon. The visa applicant indicated that she is not employed and that she had always been a housewife. She had been refused visitor visas to Australia in January 2007 and in 2006.
The review applicant and his wife provided statutory declarations to the Department, stating that they would provide the visa applicant with financial support and accommodation during her proposed stay and that the purpose of the visa applicant’s visit was to see their child who was to be born in February 2010. The review applicant also stated that the visa applicant had visited her son in Brazil twice previously and that she had returned to Lebanon after those visits.
The review applicant confirmed that he had applied for a protection visa in Australia several years ago but stated that it had been the “biggest mistake” he had ever made. He claimed he had been in a relationship with a woman and a friend told him that he could make an application to stay in Australia. The review applicant’s English was poor at that time and he signed a form. When he found out that he had been refused the application and his friend had lodged an application for review to the Tribunal, he withdrew the application and made plans to return to Lebanon. The review applicant stated that he told Departmental officers at that time that he would return to Lebanon.
The review applicant confirmed that he was sponsored to Australia by his current wife, with whom he has three children. He stated that the visa applicant had visited her son in Brazil twice but she had returned to her home, her family and friends in Lebanon. The review applicant claimed the visa applicant only wishes to see her family in Australia as it was impossible for her elderly parents to travel to Lebanon and it is very expensive for himself and all his family to travel to Lebanon. The review applicant also stated that no other family members had ever overstayed their visas or breached visa conditions and he was extremely concerned that his mother had been punished as a result of his actions over 10 years ago.
Held: Decision under review set aside.
The Tribunal considered the delegate’s concerns regarding the review applicant’s immigration history and agreed that the review applicant’s this matter was relevant in considering whether the visa applicant would overstay or attempt to change her status upon her arrival in Australia. Whilst the review applicant’s immigration history indicated that he sought to change his status following his arrival, the Tribunal found the review applicant to be a credible witness and accepted that he considered that the lodgement of his application for a protection visa several years ago was a significant mistake on his part and a poor lapse of judgement. The Tribunal also accepted that the review applicant may not have been aware, as evidenced by the fact that he subsequently withdrew the review application, that he had made an application for refugee status in Australia. The Tribunal also considered that the review applicant’s circumstances differed considerably from his mother’s as he was a young man at that time and his mother is in her late 50s. The Tribunal accepted that the visa applicant would not seek to engage in employment in Australia or remain in Australia for this purpose. Accordingly, the Tribunal was satisfied, having regard to family commitments and the visa applicant’s previous travel, as well as the good immigration history of other family members, that the review applicant’s previous application for protection was an aberration and that the visa applicant’s intention only to visit Australia was genuine. Therefore, the Tribunal found that the visa applicant satisfied the requirements of cl.679.224 of the Regulations.
June 2010
0900323
4 June 2010, Sydney
Ms A Cranston, Member
RETURN (RESIDENCE) (CLASS BB) – SUBCLASS 155 – FIVE YEAR RESIDENT RETURN – CL.155.211 – FORMER AUSTRALIAN PERMANENT RESIDENT – A delegate of the Minister refused to grant the applicant a resident return visa as the delegate was not satisfied that the applicant was a former Australian permanent resident. The applicant claimed she had lived in Australia for 28 years and that she had never worked or lived as a resident in any other country since she was 21. The applicant’s adviser provided a submission to the Department which explained that, despite having lived in Australia as a New Zealand citizen for some twenty years from 1979 to 1999 and from 2004 until the present, the applicant was not entitled to make an application for Australian Citizenship because she was absent from Australia on 26 February 2001 and was not, therefore, a permanent resident as defined by s.5 of the Australian Citizenship Act 2007. The applicant’s adviser also provided a summary of the applicant’s immigration history and submitted that the applicant should be eligible for a Subclass 155 visa as she met clause 155.211(1)(c) because she was a former Australian permanent resident. The adviser argued that the term ‘former Australian permanent resident’ should be read to include any person who can demonstrate that he or she was an Australian permanent resident at any time, whether or not the person actually held a permanent visa under the law as it was at that time. The advisor contended that the applicant was a permanent resident under the law as it was during the period 1979 to 1993 and so was a former Australia permanent resident as that term should be interpreted. He contended that the term ‘former Australian permanent resident’ cannot simply mean a person who was, at some time in the past, an Australian permanent resident as defined in regulation 1.03.
Held: Decision under review affirmed.
The Tribunal did not agree with the adviser’s arguments and found that ‘former permanent resident’ did not mean a person who, at some time in the past, was an Australian permanent resident and held a permanent visa. Further, the Tribunal did not accept the adviser’s submission that the applicant should be treated as having held such a permanent visa simply because she had permission to remain in Australia indefinitely during the period 1979 to 1993 when, in fact, she never had a permanent visa issued to her. Accordingly, although the Tribunal accepted that the applicant may have been an Australian permanent resident for the purposes of the Act as it was from December 1989 to February 1993, and she may have also been treated as an Australian permanent resident for the purposes of the Act as at October 1984 to December 1989, it found that the applicant was not given a permanent visa when they were first introduced on 1 September 1994. Therefore, she had never held a permanent visa and thus did not meet the definition of ‘former Australian permanent resident’ at the time of application. Accordingly, the Tribunal found that as the applicant had never held a permanent visa, she did not meet cl.155.211 of the Regulations. Nonetheless, the Tribunal expressed sympathy for the applicant and noted that, as Australia had been her home and residence since 1979, this may be a case where the application of relevant legislation has led to an unfair or unreasonable result and where the Minister may wish to exercise his discretion. Accordingly, although the Tribunal found that the applicant did not satisfy cl.115.211 for the grant of a Class BB visa, the matter was referred to the Department for the Minister’s attention.
1002644
3 June 2010, Sydney
Ms K Raif, Member
TOURIST (CLASS TR) – SUBCLASS 676 – TOURIST – CL.676.211 – GENUINE VISIT – A delegate of the Minister refused to grant the applicant a Subclass 676 visa on the basis that he was not satisfied the applicant’s expressed intention to only visit Australia was genuine. The visa applicant claimed she was a widow and that she had funds to support herself financially while in Australia along with her daughter and son-in-law’s support. The visa applicant’s son in Sri Lanka claimed that the visa applicant lived with him and his wife and she cared for their daughter as they both worked. He claimed she was very religious, attending temple regularly and she participated in religious activities, charity work and she was involved with the Preschool Education Council. The visa applicant claimed she wanted to spend time with her daughter and her family in Australia and that she was very attached to her granddaughter, who often asked when she could visit. She claimed she had been a tutor for 40 years, a lifelong member of a school council and a teachers’ adviser. She also claimed she received a pension and rent from a house and that she was happy in her native place where she wished to spend the latter part of her life.
The review applicant claimed her mother wanted to visit her family in Australia, to be involved in activities and to get acquainted with the culture and visit tourist destinations. She claimed her mother wanted to see how studies were conducted in Australia and to be here for her granddaughter’s birthday. She claimed her mother had never traveled to Australia nor had an opportunity to see other family members and grandchildren. The review applicant claimed that the visa applicant could have migrated under a widow visa but she did not. She claimed the visa applicant was not affected by the political situation in Sri Lanka, that she had not been subject to persecution, threats or intimidation, and she was never approached by armed groups, nor had she been arrested or adversely affected at any time. The review applicant further claimed her mother lived peacefully, and she had three siblings who she sees each day. She claimed there was no need for her to live in Australia and that, as her brother wished to visit Australia in the future, the visa applicant did not want to jeopardize any future visits.
Held: Decision under review set aside.
The Tribunal accepted the visa applicant had substantial family ties that may encourage her to return to Sri Lanka however, the Tribunal also considered her family ties to Australia to be equally significant. The Tribunal’s view was that the visa applicant’s links with Australia, including with her granddaughter, could equally encourage her to remain. The Tribunal accepted the visa applicant’s assets may encourage her to return and although it did consider her property to be transferable, the review applicant was uncertain whether her mother could access her pension from Australia. The Tribunal acknowledged the review applicant’s evidence that her mother was elderly and that she may not be able to engage in activities she enjoyed whilst in Australia. The Tribunal also acknowledged the visa applicant may not wish, at her age, to change her lifestyle, her surroundings and her country of residence since she has never previously sought to travel to other countries where her children reside. The Tribunal’s view was that such matters may constitute a very significant incentive for her to return to her country. The Tribunal accepted the primary purpose of the visit was to visit her family and for tourism. The Tribunal found the duration of her proposed visit was consistent with the purpose of the visit and also with her commitments in Sri Lanka. The Tribunal accepted the political situation was less likely to affect the visa applicant and while the Tribunal had some concerns about the effect of the situation in Sri Lanka, such concerns did not override other considerations. The Tribunal was satisfied the visa applicant’s expressed intention only to visit was genuine and placed significant weight on the visa applicant’s social and familial commitment in Sri Lanka, as well as property ownership. Accordingly, the Tribunal found that the visa applicant met the requirements of cl.676.211 of the Regulations.
April 2010
1000409
8 April 2010, Melbourne
Mr D Young, Member
SPONSORED (VISITOR) (CLASS UL) – SUBCLASS 679 – SPONSORED FAMILY VISITOR – CL.679.214 – RELATIONSHIP OF APPLICANT AND SPONSOR – INFORMAL ADOPTION – A delegate of the Minister refused to grant the applicant a Subclass 679 visa on the basis that the delegate was not satisfied that the visa applicant was the adoptive mother of the review applicant. The delegate found that documents tendered as evidence of the relationship between the visa applicant and the sponsor were inconsistent and inconclusive. The review applicant claimed the visa applicant was her mother’s sister, and after her mother died when she was three months old, she was jointly adopted by the visa applicant and another of her mother’s sisters. She claimed that after her mother died, her father left her and her brother in the care of her aunts and he showed no further interest in them. The review applicant claimed she did not know if the adoption had been formalised at that time and that their aunts had merely assumed primary responsibility for their day to day care. However, the review applicant claimed she was formally adopted by her aunts as an adult in 2008 when she applied to sponsor her second husband and her aunts wanted to establish a legally enforceable basis for her to claim against their estates in the event of their deaths. The review applicant claimed that as the adoptive child of spinsters, her standing as the primary beneficiary would be beyond dispute and exclude other claims. She also claimed the visa applicant was the same person who was identified in the family composition document as her aunt and that the translations of the family composition document she had obtained showed some family members’ birthdates, including the visa applicant, in the Burmese calendar system. She claimed in the second translation the translator had made a mistake in rendering the visa applicant’s birth date. The review applicant claimed she was in a hurry and did not check the dates and only became aware of the discrepancy when it was pointed out by the delegate.
Held: Decision under review affirmed
The Tribunal did not accept that the visa applicant was the adoptive mother of the review applicant which was the central issue in this matter. The Tribunal found that under Australian law, the review applicant’s formal adoption as an adult was not recognised; however, the Tribunal took this to imply that the adoption had not been formalised at some earlier point in time. The Tribunal then considered whether the visa applicant was the aunt of the review applicant but found that discrepancies in three documents provided as evidence of the review applicant’s identity and the relationship, failed to resolve the questions before it. The Tribunal noted a significant discrepancy between the date of birth in the visa applicant’s passport and the date on the translation of family composition document. The Tribunal also had doubts whether the visa applicant was the person identified in the family composition document as the review applicant’s aunt. Accordingly, the Tribunal was not satisfied that the visa applicant was the aunt of the review applicant or that their relationship was of a kind contemplated by the Regulations. Accordingly, the Tribunal found that the visa applicant did not satisfy the requirements of cl.679.214 of the Regulations for the grant of a Sponsored Family Visitor visa and it affirmed the decision under review.
1002110
6 April 2010, Sydney
Ms A MacDonald, Deputy Principal Member
BRIDGING E VISA (CLASS WE) – SUBCLASS 050 – BRIDGING GENERAL – COMPLIANCE WITH CONDITIONS 8505 (LIVE AT SPECIFIED ADDRESS) AND 8506 (NOTIFY CHANGE OF ADDRESS) – A delegate of the Minister refused to grant the applicant a Bridging E visa on the basis that, due to the applicant’s immigration history, the visa applicant would not abide by conditions placed on a Bridging E visa, and that no amount of security would ensure his compliance with the conditions. The applicant first arrived in Australia in 1989 on a student visa which expired in 1990, and remained in Australia as an unlawful non-citizen. In April 2009 the applicant contacted the Department by phone and arranged to attend an interview to update his visa status. Departmental interview records indicated that the applicant claimed he stayed with a friend or at a community centre, he was not working, he had no money to support himself, and he wanted to remain in Australia. He claimed he would like to depart Australia and apply for a student visa offshore which would allow him to return to Australia, and he was reminded of the exclusion period which would apply to him due to his unlawful status. The applicant was granted a bridging visa allowing him time to consider his options and he was requested to present to the Department on a specified date; however, he failed to attend. The applicant was located by Departmental officers several months later working in a restaurant. He was again interviewed and he claimed that he did not want to depart Australia and had obtained a travel document purely for identification purposes. He had no intentions of departing Australia and had no funds to facilitate his own departure. The applicant was subsequently detained. At the Tribunal hearing, the applicant’s employer stated that he had employed the applicant since January 2010 in his restaurant as a qualified chef and that their business had suffered terribly since the applicant’s detention, as they had not been able to find a suitably qualified replacement at short notice. The employer claimed that if the applicant was released from detention he would continue to employ the applicant and he would pay him a salary of $850 per week and he could reside with him at a specified address. The applicant’s employer also said he was prepared to lodge a security of $10,000 as he was certain the applicant would comply with the conditions imposed. He now knew the applicant’s migration history and was still prepared to support the visa application. Financial documents of the restaurant were also provided in support of the application.
Held: Decision under review set aside
The Tribunal accepted that the applicant genuinely regretted his past breaches of immigration law and that he acknowledged that his undecided Subclass 155 application was his last opportunity to regularise his status. However, the Tribunal was concerned that the applicant may not continue to reside at a specified address or that he would advise a change of address, thereby breaching conditions 8505 and 8506. The Tribunal acknowledged that the applicant said he would comply with these conditions. Nonetheless, it was concerned that the applicant had remained in Australia unlawfully for such a significant period of time and he had expressed a strong desire to remain in Australia. The Tribunal was of the view that the applicant’s past actions indicated he would not comply with the conditions imposed on the visa if granted. It noted that the applicant’s employer had advised he was prepared to lodge a security of $10,000 such was his faith in the applicant. Although the delegate found that no security would provide a meaningful incentive, the Tribunal considered a security of $10,000 would provide a meaningful incentive for the applicant to abide by the stated conditions, particularly as the applicant’s employer would be providing the money himself and he was aware that he would forfeit the money if the applicant failed to comply with the conditions imposed. Having considered all of the circumstances, particularly the applicant’s migration history, the Tribunal was satisfied that a $10,000 security would provide a meaningful incentive for the visa applicant to comply with the conditions imposed on the visa if granted. Therefore, the applicant met the requirements of cl.050.223 of the Regulations and the decision was set aside.
March 2010
0909458
3 March 2010, Sydney
Ms D Barnetson, Member
TOURIST (CLASS TR) – SUBCLASS 676 – S.66 – DEFECTIVE NOTIFICATION – The review applicant was an eleven year old girl at the time the review application was made and, therefore, the application was signed by her grandmother. The review applicant’s grandmother claimed that the applicant’s father lived in Australia and that he had remarried and lived with his wife and her child. She claimed that the review applicant’s mother was the visa applicant, who lived overseas, and that the review applicant lived with her (the grandmother) and had done so since her arrival in Australia. The grandmother argued that neither of the review applicant’s parents had the responsibility for the review applicant, however she, as the child’s guardian, had responsibility for the rights and welfare of the child. The Tribunal noted that the question that arose in this case was whether the Tribunal had jurisdiction, which depended on whether the review applicant lodged an application properly made under s.347 of the Act for review of the delegate’s decision.
Held: The Tribunal did not have jurisdiction in this matter.
The Tribunal accepted that the review applicant lived with and was cared for by her grandmother who provided care and support for her on a daily basis. It also accepted that her grandmother had performed this role on a long-term basis. However, the Tribunal found that there was insufficient evidence for it to be satisfied that she had the legal capacity to make this review application on behalf of the review applicant. It also found that there was insufficient evidence that the review applicant’s parents, one of whom was resident in Australia, no longer had legal responsibility for the review applicant. The Tribunal was not satisfied that the arrangement with the grandmother was anything other than an informal one for the day to day care of the child. Consequently, the Tribunal found that the grandmother was not the guardian of the review applicant. The Tribunal noted that as a minor, the review applicant did not have the legal capacity to make an application in her own right and that her guardian, as defined under the legislation, must do so on her behalf. The Tribunal found that as the review application was made on the review applicant’s behalf by her grandmother and that there was no information to suggest that she was the review applicant’s guardian as defined in the legislation, the application for review was not an application which was properly made under s.347 for review of an MRT-reviewable decision. The Tribunal further noted, however, that in the Department’s letter to the visa applicant advising of the decision that it was stated there were no review rights available to the applicant, and that under the provisions of the Act which set out the various decisions that are MRT-reviewable, a decision to refuse to grant a Tourist (Class TR) visa under s.65 of the Act was covered by s.338(7). Therefore, the Tribunal found that the Department gave incorrect information in its letter to the visa applicant, and that the decision was indeed an MRT-reviewable decision. The Tribunal noted that s.66(2) provided that notification of a decision to refuse a visa must contain certain information about why the visa was refused and, if there was a right of review, how to apply for review of the decision. It found that, in this case, it appeared that the notice issued by the Department under s.66 was defective meaning that there was not a valid notification of the primary decision, and that a further application could therefore be made by the review applicant’s parent or legal guardian. Accordingly, the Tribunal found it did not have jurisdiction in this matter.
February 2010
0907811
26 February 2010, Melbourne
Ms G Hamilton, Member
RETURN (RESIDENCE) (CLASS BB) – SUBCLASS 155 – (FIVE YEAR RESIDENT RETURN) – CL.155.212 – SUBSTANTIAL TIES TO AUSTRALIA – COMPELLING REASONS FOR ABSENCE – A delegate of the Minister refused to grant the applicant a Subclass 155 visa on the basis that the applicant did not meet the criterion in cl.155.212. The applicant was granted permanent residence in Australia on 8 August 2002, arrived on 16 August 2002. He left Australia on 25 August 2002, without returning. Thus, he had been absent from Australia for a continuous period of 5 years immediately before making the application for the visa. He claimed, however, to have substantial personal ties to Australia, in that his mother lived in Perth, and to have compelling and compassionate reasons for his absence from Australia. In outlining the reasons for his absence from Australia, he referred to sustaining an injury which it had taken several months to recover from, to his son’s education and army commitments, as well as to business and financial considerations. He gave evidence at the Tribunal hearing that, until two years ago, he had regularly paid for his mother and her husband to travel to see him and his family in Israel but that now they are unable to travel because of their age. He claimed that if allowed to return to Australia, he would probably establish a tourism business. He provided details about the highly successful tourism business he had run in Israel and explained that he had been unable to get away from it or to wind it up, as he had a number of employees for whom he felt responsible. A letter from the applicant’s Federal MP and other supporting documentation was provided in support of the application.
Held: Decision under review set aside.
The Tribunal found that there were compelling reasons for the applicant’s absence from Australia since August 2007. The Tribunal accepted his evidence that during the period in question his business was rapidly expanding and that as he had all the expertise on which it depended, he had been unable to leave Israel for leisure. The Tribunal noted that for this reason he had paid for his mother and stepfather to visit Israel for extended periods. The Tribunal also accepted that twenty employees had been dependent on the applicant for their livelihood and that he needed to sell the business as a going concern in order to move to Australia. The Tribunal acknowledged that, to do this, he had to keep the business running profitably until a buyer was found. The Tribunal also found the applicant had strong family ties in Australia and intended to reside here permanently. It accepted that he was very likely to become a participating member of the Australian community and economy in the future, and that his presence would certainly enrich the lives of individual Australian residents and citizens – namely his mother and stepfather. The Tribunal, therefore, found that the applicant had substantial personal ties with Australia which were of benefit to Australia and accordingly, that he met the criterion in cl.155.212 of the Regulations.
N05/00729
19 February 2010, Sydney
Mr D O’Brien, Principal Member
GENERAL (RESIDENCE) (CLASS AS) – SUBCLASS 805 (SKILLED) – CL.805.224 – PIC 4002 – ASIO ASSESSMENT – A delegate of the Minister refused the applicant’s Subclass 805 visa application as the visa applicant did not satisfy cl.805.224 of the Regulations. The primary applicant’s family were included in the application as dependants, however, subsequently the third, fourth and sixth named applicants obtained Australian citizenship. The delegate refused to grant the remaining visas on the basis that the applicant failed to meet public interest criterion 4002 (PIC 4002) which related to assessments made by the Australian Security Intelligence Organisation (ASIO). The applicant was sponsored by an Islamic association as an imam. The Tribunal had previously ceased a review of the delegate’s decision as the Minister had issued a conclusive certificate under section 339 of the Act in relation to that decision. The applicant subsequently filed for judicial review in the Federal Court, seeking review of ASIO’s security assessment and the Minister’s decision to issue the conclusive certificate, which was set aside. ASIO then made a fresh assessment that the applicant was a risk to Australian national security, and the applicant brought fresh proceedings in the Federal Court seeking, amongst other things, an injunction restraining ASIO from furnishing their assessment to the Department and declarations that the assessment was void and inoperative. This application was dismissed, and the applicant then applied to the Full Federal Court which also dismissed the application. Subsequently, the applicant made an application for special leave to appeal to the High Court which was refused, and this refusal had the effect that the Tribunal could proceed with its review. At the Tribunal hearing, the applicant claimed that he had resided in Australia with his family for 16 years and that, if he was a real threat to the national security of Australia, he would have been deported. He further claimed that he had promoted unity and harmony in the local community, noting that he was the chairperson of a multi-faith roundtable, and that he and his family members were law abiding members of the community. The applicant claimed that he was last interviewed by ASIO 11 years ago and that ASIO had had no further contact with him since then. The applicant stated that as a Sheikh it was his responsibility to lead the daily prayers for his congregation, that the focus of his centre was on educating youth, and that he provided a range of services such as youth orientated seminars, including multi-faith gatherings designed to promote harmony and minimise racial tension. The primary applicant claimed that he also solemnised marriages, for which there was a big demand as there was a shortage of Persian speaking scholars in Australia. The applicant submitted two DVD’s which contained footage of him with members of his congregation, youth camp participants, various community leaders, associates and multi-faith roundtable members. The Tribunal also received various oral and written testimonies on behalf of the applicant.
Held: Decision under review affirmed
The Tribunal noted that, although it did not have the ASIO adverse security assessment before it, the existence of that assessment was not in doubt and was the subject of the proceedings before the Federal Court and the Full Federal Court. It also noted that its existence was advised to the primary applicant by letter in 2004. The Tribunal found that based on the evidence, ASIO had assessed in 2004 that the applicant was a risk to Australian national security. The Tribunal further found that the assessment made by ASIO in relation to the applicant was an assessment that fell within PIC 4002 and that the primary applicant did not satisfy PIC 4002. The Tribunal noted that whilst it was sympathetic to the applicant’s predicament, it did not have the power to examine the validity of the ASIO assessment. As a consequence, the Tribunal found that the applicant did not satisfy a key criterion for the grant of a Subclass 805 visa. Accordingly, the Tribunal affirmed the decision not to grant a Subclass 805 (Skilled) visa.
0909841
17 February 2010, Sydney
Mr A Jacovides, Member
TOURIST (CLASS TR) – SUBCLASS 676 (TOURIST (SHORT STAY)) – CL.676.211 – CL.676.221(2)(a) – GENUINE VISIT – A delegate of the Minister refused to grant a Subclass 676 (Tourist) visa on the basis that the visa applicant did not satisfy cl.676.211 of the Regulations. The delegate was not satisfied that, at the time of application, the applicant’s expressed intention to only visit Australia was genuine. The visa applicant claimed to be a citizen of Sri Lanka and wanted to visit his Australian citizen daughter. He claimed he had five children, two were living in Sri Lanka, one was in Bahrain, another in Germany and the review applicant daughter lived in Australia. He claimed he had previously visited his daughter in Australia as well as visiting his son in Bahrain and his son in Germany. He submitted details regarding his identity, citizenship, family composition, financial situation, property ownership in Sri Lanka, and documents relating to his health and insurance coverage for his visit to Australia. He provided letters of support from the review applicant and details regarding her circumstances in Australia.
Held: Decision under review set aside.
The Tribunal was satisfied from the information provided that the visa applicant had sufficient reason to return to Sri Lanka after visiting his daughter in Australia, including his two children, other family members, community activities and his home. The Tribunal accepted and considered significant his claim that he abided by the conditions of his previous visitor visa to Australia and that he would do so again in the future. The Tribunal also considered it significant that he visited his other children in Germany and Bahrain without seeking to overstay those visits. The Tribunal accepted the visa applicant’s claim that a similar visit was intended in relation to his current application and was satisfied the applicant intended to visit Australia temporarily. The Tribunal found no compelling evidence which indicated the visa applicant would not abide by the conditions of his visa and was satisfied that the visa applicant’s stated purpose for the visit was the real purpose of the visit. Accordingly, the Tribunal was satisfied the visa applicant’s intention only to visit Australia was genuine and found he satisfied the requirements of cl.676.211 and cl.676.221(2)(a) of the Regulations.
0804793
7 February 2010, Melbourne
Ms R Gagliardi, Member
RESIDENT RETURN (RESIDENCE) (CLASS BB) – SUBCLASS 155 – (FIVE YEAR RESIDENT RETURN) – CL.155.212(3) – TIES WITH AUSTRALIA – COMPELLING CIRCUMSTANCES – A delegate of the Minister refused to grant the applicant a Subclass 155 visa on the basis that in the five years prior to lodging his Resident Return Visa application, the visa applicant spent only 94 days in Australia having last departed on 8 March 2008. The visa applicant claimed at the time of application that he had substantial personal ties with Australia as his sister was an Australian citizen and resides in Australia and that he has worked on projects in Sydney where he was involved in designing computer programmes for banks. He claimed he also managed a project for a telecommunications company. The applicant submitted a written statement and emails from his employer in Sydney offering him a position in Australia. The visa applicant stated that he could not accept the offer due to his mother’s medical condition of solaris arthritis with limited mobility accentuated by her age. He claimed that he would arrange for his brother to take over the care of his mother in several years’ time when his children had finished primary schooling in Malaysia. The review applicant’s son submitted information about the business plans he and the visa applicant had afoot in Australia. He claimed that the business plans had advanced to a considerable degree and the visa applicant had sent him money to establish the business and that they had agreed on a company name and had purchased a website name. They had also put together a business plan showing how profitable the business would be. They planned to start off by employing 5 consultants and it would be a joint partnership, looking to employ up to 30 persons. The review applicant’s son also stated that the applicant was currently “on leave” from an Australian company and that, in fact, he was working with his Australian colleagues from Malaysia. The review applicant claimed that the position in Australia was still open to him.
Held: Decision under review set aside.
The Tribunal found that the applicant was not lawfully present in Australia for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa. Therefore, the applicant could not meet sub-criterion 155.212(2). The Tribunal then considered whether the applicant had substantial business, cultural, employment or personal ties with Australia which were of benefit to Australia, and the applicant. The Tribunal found that the visa applicant’s business/employment interests were still ongoing, despite his departure from Australia and that the applicant continued to work for the same company and that he can be transferred to Australia, as the visa applicant’s brother is now able to look after their unwell mother. The Tribunal also accepted evidence in relation to the visa applicant’s base salary in Australia and evidence of the joint venture that the visa applicant intends to enter into with his nephew. The Tribunal accepted evidence that substantial funds were deposited for the purposes of establishing a business together. The Tribunal also accepted that a Business Plan and an account for a domain name for the proposed business, was evidence that the visa applicant’s business ties to Australia were concrete and had been in train for some time now. The Tribunal was satisfied, therefore, that the visa applicant’s business links to Australia, both as an employee and an employer, were significant. Having found that the visa applicant did have substantial ties, by way of personal, employment and business ties in Australia, the Tribunal then determined whether there were compelling circumstances for the departure of the visa applicant on 8 March 2008. From the evidence at hearing and medical documentation showing that the visa applicant’s mother’s chronic illness of solaris arthritis which made her dependent for assistance with every day tasks and mobility, the Tribunal was satisfied that the absence of the visa applicant from Australia, and that the reason he could not take up the position offered to him here, was solely due to his strong family responsibility, which he had to bear at the cost of progressing his professional development here in Australia. The Tribunal considered that, in this case, the circumstances for the absence by the visa applicant from Australia were compelling. Accordingly, the Tribunal found that the applicant met cl.155.212(3) for the grant of the visa.
0908819
2 February 2010, Melbourne
Mr J Atkins, Member
MEDICAL TREATMENT (CLASS UB) – SUBCLASS 685 (MEDICAL TREATMENT (LONG STAY)) – CL.685.212 – FORMAL MEDICAL TREATMENT PLAN – ARRANGEMENTS CONCLUDED – A delegate of the Minister refused to grant a Subclass 685 visa on the basis that the visa applicant did not satisfy cl.685.212 of the Regulations because the delegate was not satisfied there was a formal medical treatment plan in place in Australia. The applicant claimed she was well on arrival in Australia and was considering returning home when she became ill. She claimed her daughter took her to a general practitioner (GP) because she was suffering from various symptoms, and that she had developed a clot in her heart and could not fly until it was cleared. Her GP sent a letter to the Department which stated her condition, the treatment she had received, and that she had been referred to a specialist, specifying the applicant’s inability to travel because of her condition. A specialist’s letter stated that he performed tests upon the applicant and found she suffered from atrial fibrillation. An updated letter provided to the Tribunal from the GP advised the applicant’s medication had changed but did not indicate follow up medical treatment or how long the treatment would take. Two specialist’s reports stated that the applicant could not travel home to Albania because of her medical condition, and that facilities in Albania were not sufficient to treat her condition. One report further stated it could take three months to control the medical problem for the applicant to be able to fly and that her current medications were continuing. The applicant claimed that she saw her GP fortnightly who checked her condition, took blood samples which were regularly tested, and was responsible for managing her medical treatment. She claimed that she had not been offered any surgical treatment by her specialist. The applicant’s daughter claimed that she and her husband paid for the applicant’s medical treatment, and that her mother was willing to return home when she was well enough. The review applicant further claimed her brother came to Australia to take the applicant and her husband home but was advised by medical practitioners the trip could kill her. She claimed her brother returned to Albania without the applicant as he was told by the doctors she was not well enough to travel by air.
Held: Decision under review set aside.
The Tribunal accepted that the applicant’s consultations with her GP constituted medical treatment. The Tribunal found that the applicant consulted her GP for symptomatic relief and that the treatment was expected to continue. The Tribunal also found the applicant consulted a specialist and her GP among other relevant professionals at the time of application and that the applicant followed the course of treatment prescribed for her by her doctors and that she had continued to do so, and that she would need to do so until she was reviewed by the specialist. The Tribunal accepted that the applicant’s daughter and son-in-law paid for her medical expenses and that the applicant was not well enough to travel by air to Albania. Accordingly, the Tribunal was therefore satisfied that arrangements were concluded to carry out the treatment at the time of application and the applicant satisfied the requirements of cl.685.212 of the Regulations.
January 2010
0908799
27 January 2010, Sydney
Ms D Dimitriadis, Member
WORKING HOLIDAY (TEMPORARY) (CLASS TZ) – SUBLCLASS 417.211 – CANCELLATION – S.109 – INCORRECT INFORMATION PROVIDED – S.101(b) – A delegate of the Minister cancelled the applicant’s Subclass 417 visa under s.109 as they found that the applicant did not comply with s.101 of the Act. In her visa application, the applicant stated she had undertaken work in regional Australia for 3 months and when the Department contacted the claimed employer to confirm her employment from September to December 2008, the employer advised it had never employed the applicant and that they had not employed Working Holiday personnel in 12 years as they had an ample supply of local labour when required. The delegate found that the applicant had provided incorrect answers on her application and he proceeded to cancel the applicant’s visa. In her Statutory Declaration, the applicant claimed she did not know she had done anything wrong. She claimed she found a farmer on a website to whom she paid $500 to provide her with details to include in her application and he told her that was all she needed and everything would be fine. She claimed she was a model citizen who would never deliberately lie to the Department. She claimed she did not want to return to Ireland where there is no work and that she sends money she earns in Australia to her struggling parents in Ireland. She claimed she hoped that the Department would be compassionate and not allow a “scam artist to cost her the visa”. She provided letters of support from her current and previous employers. At the Tribunal hearing, the applicant agreed she had provided incorrect answers on her application and that she had not worked in regional Australia for the three months period. She claimed she currently worked and she did not want to be sent home for being so naïve. She claimed that if she had given the correct information, she would not have been granted the visa. She claimed she had not made any contributions to the community and she understood it was wrong to lie on the application. In a letter, her parents requested that the applicant be allowed to stay in Australia as there were no opportunities in Ireland and they appreciated the money she sent to them.
Held: Decision under review affirmed.
The Tribunal found the applicant was in breach for non compliance with s.101 of the Act as she had provided answers and information she knew were incorrect to the Department and that she had paid money for the information. The Tribunal found the provision of such incorrect information was significant and serious and that she may not have been granted the visa if the correct information had been given. The Tribunal accepted the applicant was in a relationship, that she was employed and that she had support from her previous and current employers. The Tribunal accepted that the applicant’s departure from Australia may cause inconvenience to her and her boyfriend and that she may not find a job in Ireland. However, the Tribunal considered that the Subclass 417 Working Holiday visa the applicant had held was a temporary visa and that it did not permit her to remain in Australia indefinitely, thereby requiring her to return to her country leaving her employment, friends and any other ties she may have formed in Australia. The Tribunal did not accept the applicant was merely naïve in paying for and providing incorrect information in her application as she knew the information she had provided was untrue. Accordingly, the Tribunal found the applicant had breached s.101 of the Act and that the breach was significant as she was unlikely to have been granted the visa if the correct information had been provided. Accordingly, the Tribunal was satisfied the applicant’s Subclass 417 visa should remain cancelled.
0909452
25 January 2010, Melbourne
Mr D Lennon, Member
CULTURAL/SOCIAL (TEMPORARY) (CLASS TE) – SUBCLASS 416 (SPECIAL PROGRAM) – CL.416.214 – A delegate of the Minister refused the applicant’s Subclass 416 visa on the basis that the visa applicant did not satisfy cl.416.214, as the delegate was not satisfied that the visa applicant would comply with all of the conditions that would be attached to the visa. The visa applicant was a 21 year old citizen of Vietnam who, it was proposed, would be employed as a dressmaker for the Lifestart Foundation program in Melbourne. The Lifestart Foundation was a non-profit community based charitable organisation which had a Vietnamese charity partner, the Quang Nam Union of Friendship Organisation. The Foundation supported orphans, street children and disadvantaged families in Hoi An by providing guidance, support, financial assistance and training in areas such as schooling, scholarships, apprenticeships, practical work experience, building, medical assistance and sanitation. The Foundation had a number of ties with Australian organisations that regularly sent students to Vietnam to broaden their skills base and foster long term relationships with the Hoi An community. The delegate claimed that the applicant had shown little awareness of how she was selected or what skills she would develop during her period with Lifestart. However, it was submitted by the applicant’s representative, that this was not to be unexpected given the fact that the applicant had been daunted by the unexpected phone interview, the kind of which she had not experienced before and that it was unreasonable to refuse the visa on this basis. The Tribunal heard evidence from the founder of Lifestart who claimed that the applicant would be required to undergo a two-stage training process which would be comprised of a 12 month Subclass 416 visa, followed by the applicant’s return to Vietnam and then an application for an “occupational training visa”. This explained why the applicant had claimed in her interview that she would be in Australia for two years. The applicant claimed that she wanted to come to Australia to learn how to sew bridal dresses and that she did not want to settle in Australia permanently. She claimed that she wanted to learn the language and culture of another country but she wanted to return to her family in Vietnam to open her own shop.
Held: Decision under review set aside
The Tribunal noted that the telephone interview was conducted by an unscheduled telephone call to the applicant at work, which although was more spontaneous, this did not give applicants time to prepare their answers and could easily be tainted by other problems such as the interviewee being distracted or not being inclined to reveal to their current employer that they were applying to travel to Australia. The Tribunal further noted that the visa applicant did not have a detailed knowledge of some of the matters raised by the Department, but also found that she was able to demonstrate an awareness of the fundamental features of the program such as the hours of her work, her living arrangements and the fact that she would be learning dressmaking. In the circumstances, the Tribunal did not draw any adverse inference from her failure to mention the rate of pay that she would receive. The Tribunal found that, whilst the visa applicant was recorded as having stated that she expected to stay in Australia for two years, at another point in the interview she stated that the program was for about a year and that she would apply for another visa if she wanted to do further study and work in Australia, and that this reflected the schedule outlined in the evidence given by the other witnesses. The Tribunal was concerned that the visa applicant might seek to explore other opportunities in Australia and overstay her visa and noted that the various parties accepted that their sponsorship involved a “leap of faith” in the visa applicant’s commitment to the program. That said, the Tribunal found that there was no basis upon which to find that the visa applicant would not comply with the visa conditions and that, considering the important philanthropic and the community development by Lifestart, the Tribunal was of the view that there was a substantial disincentive on the visa applicant’s part to bring Lifestart into disfavour with the Department and jeopardise its further works in the community. Accordingly, the Tribunal found that the applicant satisfied cl.416.214 of the Regulations and set aside the decision to refuse the visa application.
0905801
25 January 2010, Melbourne
Ms K Kirmos, Member
MEDICAL TREATMENT (VISITOR) (CLASS UB) – SUBCLASS 675 – MEDICAL TREATMENT (SHORT STAY) – CL.675.216 – CONDITION 8503 WAIVER – INVALID APPLICATION – The delegate refused the visa application as the applicant did not satisfy cl.675.216. On 28 September 2007, the Department received a request to waive condition 8503 on the applicant’s then Medical Treatment Visa, which expired on 11 October 2007. Condition 8503, which provides that “the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia”, was waived on 20 December 2007 and the new Medical Treatment application was lodged on the same day. The delegate refused this application as they found that the applicant did not satisfy cl.675.216 because she did not hold a substantive visa at the time the application was made and that it was made in excess of 28 days after her substantive visa had expired. It was submitted by the applicant’s representative that the applicant lodged her waiver request in September 2007 and a Departmental officer had then called the applicant to advise her to lodge her Subclass 675 visa application, which she did prior to 11 October 2007. It was submitted that the visa application was made when it was received by the Department on 11 October 2007, not when the Department processed the fee on 20 December 2007 after the waiver decision was made, and that the waiver was implicitly granted when the applicant’s family was contacted and encouraged to lodge the visa application, some time before 11 October 2007. The applicant’s representative submitted that if the condition had not been waived then the visa application should have been returned. The applicant’s son-in-law gave evidence to the Tribunal at hearing that he believed he was told by a Departmental officer to lodge the visa application on the day it was sent, although he could not recall clearly. He and the applicant’s daughter also gave evidence that the applicant is elderly and unwell. They submitted that in the past they met the cost of providing her with the medical and general care she requires and they are happy to do so in the future.
Held: Decision under review set aside and substituted that the visa application was invalid.
The Tribunal found that where the previous visa was granted subject to condition 8503, the waiver of this condition must occur before the visa application can be validly made. The Tribunal found that in this case, as condition 8503 had not been waived when the visa application was lodged on 11 October 2007, it was an invalid application. In making this finding the Tribunal noted that Departmental Procedures Advice Manual 3 instructs officers not to accept a visa application until the waiver is granted and that such an application is invalid. The Tribunal also referred to the Full Federal Court finding in Mon Tat Chan v MIAC that an application cannot become valid prior to the applicant complying with the provisions of the Act and Regulations that make the application valid. Applying this reasoning, the Tribunal found that the visa application could not be validly made before 20 December 2007 when the waiver was granted in writing. Accordingly, the Tribunal set aside the decision under review and substituted a new decision that the visa application was invalid. The Tribunal also noted its sympathy with the applicant in this case and directed that, given that the waiver was ultimately approved and that the process was initiated by the applicant in a timely manner, the case be referred to the Minister.
0908568
8 January 2010, Sydney
Ms K Raif, Member
WORKING HOLIDAY (TEMPORARY) (CLASS TZ) – SUBLCLASS 417 – CANCELLATION – S.109 – INCORRECT INFORMATION – A delegate of the Minister cancelled the applicant’s Subclass 417 visa under s.109 as the applicant had given incorrect answers on the application form for a further Working Holiday visa. In her application, the applicant provided an ABN number and stated she had undertaken work in regional Australia for this company for 3 months between May and June 2008 and January and March 2009. A Departmental officer contacted the owner of the company who advised that all grapes/vines had been pulled out three years earlier and the company had not employed anyone since then. The delegate found that the applicant had provided incorrect answers on the application. In a statement to the Department, the applicant apologised and admitted she had provided incorrect information and that she had not undertaken the specified work in regional Australia. She claimed she came to Australia with no intention of staying more than a year but she had begun a relationship with her partner, an Australian permanent resident, and that she wanted to stay with him even though her visa was due to expire soon. She claimed she did not have time for the three months of regional work, so she obtained the ABN number and applied for the visa. The applicant claimed she was usually an honest person and that she regretted her actions. However, she was willing to do regional work for three months or anything else to make up for her non-compliance. She claimed she understood that her visa may not have been granted if she had given the correct information and that she had been short of funds for the flight home when she was given a job a few months before her visa expired. She also claimed that she had contributed to the community through her work; that she had made a lot of friends and that the main reason she wanted to remain in Australia was because of her relationship.
Held: Decision under review affirmed.
The Tribunal found the applicant had provided incorrect answers on the application form and, accordingly, there was non-compliance under s.101 of the Act. The Tribunal accepted that the applicant was in a de-facto relationship, that she had been gainfully employed in Australia and that she had performed well in her job. The Tribunal accepted that the applicant’s departure may cause inconvenience to her and her partner. The Tribunal considered it significant that the Working Holiday visa was a temporary visa and the applicant would not be permitted to remain in Australia indefinitely, and that she would be required to return to her own country, leaving her partner, employment, family and any other ties that she may have formed in Australia. The Tribunal did not accept that employment or friendships were a contribution to the community and there was little other evidence provided of contributions which the applicant had made to the community. The Tribunal found the applicant had not complied with s.101 and that the non-compliance was significant as the applicant was unlikely to have been granted the visa if the correct information had been provided on the application. Accordingly, the Tribunal found there was non-compliance under s.109 of the Regulations by the applicant and that the Subclass 417 Working Holiday visa should remain cancelled.
Other Related Australian Immigration Articles:
Australian Immigration: Appeal Decisions 2010
Australian Immigration: Appeal Decisions 2009
Australian Immigration: Appeal Decisions 2008 - coming soon
- Business & Skills Visas
- Family Visas
- Partner Visas
- Student Visas
- Other Visas
