McDonald v Director General of Social Security

The Principal, a citizen of Fiji, applied for a Class 673 (close family visitor (short stay)) visa by lodging an application (form 48) with the Suva Post of the Department of Immigration and Ethnic Affairs (the Department) on 6 May 1993. The purpose of this application was to visit his sisters and their families and to have a holiday in Australia.

The application was refused by the primary decision maker on 6 May 1993. In his decision record, the primary decision maker stated the following as his reasons for refusal:

"Applicant intended to take $500 for this trip, but there is no documentary evidence to support.

30 year old male, married, farmer with little apparent incentive to return to Fiji.

For the reasons listed doubts are held concerning the applicant's intention to abide by the conditions of visitor entry. Application is refused."

On 11 June 1993, the Applicant sought a review of the decision from the Migration Internal Review Office (MIRO). The application was assessed by a review officer at MIRO and on 28 July 1993, a decision was made affirming the primary decision. The MIRO review officer, in his reasons for refusing the application, states in part:

"...The visa applicant applied for a visa to visit Australia for fourteen (14) days and stated his fares were to be paid by the review applicant and that he would take $500 with him.

The letter from the visa applicant's solicitor stated that he works on his father-in-law's farm and that the solicitor had been instructed by the father-in-law to commence documentation giving the visa applicant power of attorney to manage the farm. The review applicant has claimed that the visa applicant owns his farm and it is one of his incentives to return to Fiji after his visit. I do not accept this claim in relation to the farm given the solicitor's statement to the contrary.

Despite the circumstances of the visa applicant in Fiji in that he has his wife and children there as well as his work as a farmer I do not find that this is sufficient to conclude that he has no desire to settle in Australia or that he would abide by conditions of entry to Australia.

I note that there is conflict in the statements initially made by the visa and review applicants in relation to the proposed length of stay in Australia. On the one hand the visa applicant has stated fourteen days while an accompanying statutory declaration from the review applicant submitted with the visa application stated the duration of the visit as three months. This conflict, I find, casts further doubts on the genuineness of the visit. That the review applicant now states a visit of two to three weeks does not in any way affect my finding."

On 26 August 1993, an application for review of these decisions was lodged with the Tribunal.

The Tribunal notes that the Migration (1993) Regulations came into operation on 1 February 1993. As the visa application was lodged after this date, this application is subject to these Regulations.

The criteria that need to be satisfied for entitlement to a Class 673 (close family visitor (short stay)) visa are listed in Part 673 of Schedule 2 of the Migration (1993) Regulations as follows:

"673.32 Criteria to be satisfied at time of application (visa-before entry)

[NOTE: If the applicant has previously entered Australia as the holder of a Class 673 entry permit or entry visa, the applicant may qualify for grant of the visa under regulation 2.15.]

673.321 The applicant seeks the visa in order to obtain temporary entry for the purpose of visiting an Australian citizen, or an Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant.

673.322 The applicant has adequate funds for personal support during the period of the visit.

673.323 The period of stay in Australia proposed in the application does not exceed 3 months.

673.33 Criteria to be satisfied at time of decision (visa - before entry)

673.331 The applicant continues to satisfy the criteria specified in clauses 673.321 and 673.322.

673.332 The applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine and that the applicant does not intend to become a permanent resident of Australia.

673.333 The applicant satisfies public interest criteria 4001 to 4005, 4011 and 4012.

673.334 If the applicant has previously been in Australia, the applicant satisfies special re-entry criteria 5001, 5003, 5005, 5007, 5009 and 5010.

673.335 If so requested by the Minister, an assurance of support in relation to the applicant has been given, and has been accepted by the Minister.

673.336 The Minister is satisfied that the grant of the visa would not prejudice the rights and interests of any person who has custody or guardianship of, or access to, the applicant.

Public interest criteria include the requirements that an applicant satisfy the prescribed health criteria, be of good character and, where applicable, the criterion specified in clause 4011, which reads as follows:

(1) If the applicant is affected by the risk factor specified in subclause (2), the applicant satisfies the Minister that, having regard to the applicant's circumstances in the applicant's country of usual residence, there is very little likelihood that the applicant will remain after the expiry of any period during which the applicant might be authorised to remain after entry.

(2) An applicant is affected by the risk factor referred to in subclause (1) if:

(a) during the period of 5 years immediately preceding the application, the applicant has applied for a visa or entry permit for the purpose of permanent residence in Australia; or

(b) the applicant has one or more relevant characteristics in common with a class of persons shown by statistics prepared by the Secretary from the movement records kept by Immigration to be persons who have remained in Australia after the expiry of the respective periods of time during which they were authorised to remain in Australia.

(3) For the purposes of subclause (2), a relevant characteristic is any of the following characteristics:

(g) the place of lodgement or posting of the application for that visa."

The criteria which are most often in dispute in this visa class are those of clause 673.332 commonly referred to as the "bona fides" requirements. The Tribunal has stated on numerous occasions that, whilst decision makers must satisfy themselves that the purpose of the visit is solely for a temporary stay and not for some other goal, for example to study, work, or seek permanent residence, they need to be careful to distinguish between desire and intent. For example, visa applicants should not be penalised simply because they might have expressed a desire to live permanently in Australia, unless there is some evidence to suggest that their desire has coalesced into a firm intention to seek permanent residence during the currency of any visitor entry permit which might be granted.

When considering the factors which might assist decision makers to determine an applicant's intention, the factors are innumerable and their relevance and weight must depend on the circumstances of the individual case.

In addition to the legislative criteria set out above, the Minister for Immigration, Local Government and Ethnic Affairs issued two Policy Directions on 13 July 1992 under section 179 of the Migration Act 1958 (the Act) which entitles the Minister to give "general directions" to decision makers: see Re Deng (IRT Decision No. N91/00418, delivered 23 September 1991) for a full discussion of the Policy Directions and further observations made in Re Jiang (IRT Decision No. V91/01253, delivered 13 May 1992).

Policy Direction No. 1 is concerned with the criterion of a "genuine visit" and Policy Direction 2 with that part of the criterion in Item J of Schedule 1 relating to whether the applicant "has adequate funds for his or her support during the period of the visit". Apart from listing factors regarded as indices of these matters, the Policy Directions also deal with the general approach to be adopted in determining applications for close family visitor visas.

Both Directions caution decision makers on the weight to be accorded to "assertions, assurances or declarations" by or on behalf of an applicant which are said to be "not necessarily sufficient evidence" of bona fides or adequacy of funds.

A major feature of the first Direction is the list of "relevant considerations" with respect to determining whether an applicant intends a "genuine visit". Briefly, these comprise the level of personal, financial, employment and other commitments which may induce return to the country or usual residence; circumstances which may not induce return to the country of usual residence such as military service and unemployment; credibility in terms of character and conduct; the purpose and duration of the visit and other plans relating to the visit relative to an applicant's personal circumstances including any assistance available from the nominator; circumstances indicating a likelihood of an applicant engaging in employment in Australia; history of compliance with immigration law; and the record of an applicant's nominator in relation to migration matters. Finally, it should be noted that the second Direction clarifies the content and meaning of adequate funds for an applicant's support during the proposed visit which the Direction states is to include potential medical and hospital expenses.

The principles set out by the Tribunal in Re Saulog (IRT Decision No. V90/00053, delivered 9 November 1990), regarding onus of proof are also applicable. It was observed in that case, that the traditional rules relating to onus of proof in adversarial systems have no role to play in the process of administrative decision making, which includes the process through which this Tribunal must go to reach a decision. There is no onus in the legal sense upon applicants to "prove" their entitlement to a visa but there may be occasions when an applicant bears a "common sense" onus of making information in his or her knowledge available to the decision maker or at least of offering a beginning of proof in those matters which will assist in reaching a decision in the applicant's favour. See Re Holbrook and the Australian Postal Commission (1983) 5 ALN N46; McDonald v Director General of Social Security [1984] FCA 57; (1984) 6 ALD 6.

Whilst the onus of proof generally, remains that espoused by the Tribunal in Re Saulog (supra) clause 4011 changes the way in which certain visa applications in this class must be approached with respect to the onus of proof. Clause 4011 creates what is described as a "risk factor" for any applicant for a visa who has applied for permanent residence in Australia in the previous 5 years. The "risk factor" also applies to any applicant who has "one or more relevant characteristics" (based on nationality, marital status, age, sex, occupation, the class of visa, or the place of lodgement, or posting of the relevant application) in common with a class of persons shown by Departmental statistics to have overstayed their temporary visas.

Those "statistics" are based on movement records kept by the Department, and form the basis of a computer profile of intending visitors, based on what previous visitors of the same characteristics did, when they visited Australia. On 16 January 1992, the Secretary published such statistics of "approved risk factor characteristics" based currently, only on nationality, age and sex. Although these statistics were published for the purpose of regulation 9A of the Migration Regulations, the Tribunal considers that they are equally applicable to clause 4011, which is in the same terms.

Where such a "risk factor" is present, a legal onus of proof is imposed as to the genuineness of any close family visit. Where the "risk factor" applies, a decision maker is required to look at an "applicant's circumstances in his or her country of usual residence" and determine whether they are such that there is "very little likelihood" that the applicant will overstay his/her entry permit in Australia.

As was stated in Re Deng (supra), the risk factors themselves are not relevant to whether the applicant will overstay, but merely trigger a consideration of that possibility according to the "applicant's circumstances in his or her country of usual residence". The Risk Factor Characteristics for nationals of Fiji are "females aged: 60 and over". Accordingly, the Principal being a 30 year old male, the risk factor does not apply in this case.

Apart from the documentary evidence contained in the Department's file which was provided to the Tribunal under s.122(2) of the Act, written submissions were forwarded to the Tribunal by the Applicant and her adviser, Jholl, Barristers & Solicitors. A hearing was held into this matter on 17 December 1993 at the Victorian Registry, where Jholl, Barristers & Solicitors attended and made further written submissions to the Tribunal as the Applicant, Mrs Shankar, had been unable to leave her work to attend the hearing. The Tribunal made the following findings from that evidence.

The Principal, Mr Naidu, made an application to visit Australia so that he may visit his sisters and their families. He is a 30 year old married man with 2 children who works as a farmer in Fiji. In a letter of introduction dated 15 April 1993 to the Australian Embassy in Fiji from his solicitor, it was stated that Mr Naidu worked as a farmer and was currently working on his father-in-law's farm in Fiji. The solicitor stated in the same letter that Mr Naidu wished to visit his sister for two weeks only. In a statutory declaration dated 29 December 1992, Mr Naidu stated in answer to the question "Duration of visit", that he intended to visit from 6-2-93 to 6-5-93. His application (form 48) dated 29 August 1993 stated his intended length of stay as "fourteen days".

In his written and oral submissions, the Applicant's adviser told the Tribunal that the inconsistencies regarding the period of stay sought were brought about purely by lack of considered thought relating to the matter. The Principal had help from different people when applying for the visa. He was, it is indicated, planning two weeks visit to see his sisters; when faced with the question on the Department's formal statutory declaration (form 47) with regard to the duration of his proposed visit, he had filled out "6-2-93 to 6-5-93" on the advice of someone else, this being the usual period sought with a Class 673 (close family visitor (short stay)) visa. In her written application for review to the Tribunal, Mrs Shankar states:

"In relation to the period of stay, the review applicant would consider any reasonable period. All he wants is to visit his family in Australia."

In written submissions to the Tribunal, the Applicant's adviser states:

"It is admitted that the applicant's solicitor stating that the applicant works on the father-in-law's farm is correct and that the solicitor has been instructed by the father-in-law to commence documentation giving the visa applicant power of attorney to manage the farm. However, the visa applicant and his brother also have a farm to which they are entitled to being a property owned by their late grandfather. For all intents and purposes the visa applicant and his brother are treated as owners of the farm.

It is submitted that the review applicant is correct in saying that the visa applicant owns his own farm and has intention to return to Fiji after his visit."

The Principal, Mr Naidu, has a wife and two children in Fiji who are not accompanying him on his proposed visit to Australia. Mrs Shankar, the Applicant, stated through her adviser that she and her husband are both working, and are law abiding citizens, they have bought a new house and have been able to establish a successful life in Australia. Mrs Shankar and her sister who also lives in Australia are proud of what they have achieved and are keen to show their brother how well they have done. The family in Australia is at a loss to understand why their brother is not allowed to visit them, despite the fact that there is no evidence of bad faith or breaking of any civil or immigration laws by the family in Australia. Neither has any of the family in Fiji broken any civil or immigration laws.

In her written evidence, Mrs Shankar states that she and her sister and their families would be contributing to the support of her brother while he is in Australia. She stated that she would not in any way jeopardise the standing of the family in Australia by encouraging her brother to overstay his visa and would never condone such action.

After considering all of the evidence, the Tribunal finds, on balance that the Principal, Mr Vinod Krishnan Naidu intends a genuine visit to Australia and that he does not intend to become a permanent resident of Australia. The Tribunal accepts that there are adequate funds available to support the proposed visit. An assurance of support is not usually required in close family visitor cases and it is Departmental policy not to require visitors to undergo health and character checks except in specified circumstances. The Tribunal sees no reason to depart from these policies in this case. The Tribunal is also satisfied that he meets the remaining criteria for the grant of a Class 673 (close family visitor (short stay)) visa. The Tribunal grants Mr Naidu a one month's visitor visa.

The Tribunal sets aside the decision under review and substitutes a decision that Vinod Krishnan Naidu be granted a Class 673 (close family visitor (short stay)) visa authorising a period of one month's stay upon his arrival in Australia.