1503239 (Migration)

[2015] AATA 3421

1503239 (Migration) [2015] AATA 3421 (24 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Amanpreet Singh Lail

VISA APPLICANT:  Mrs Jaspreet Kaur Lail

CASE NUMBER:  1503239

DIBP REFERENCE(S):  N15/02042443

MEMBER:Amanda Goodier

DATE:24 August 2015

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 24 August 2015 at 6:04pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 March 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 18 February 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied the visa applicant genuinely intends to stay temporarily in Australia.

5. The review applicant and visa applicant appeared before the Tribunal on 24 August 2015 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting her husband. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

10. The visa applicant has until recently, never previously travelled to Australia.

11. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The visa and review applicants indicated the visa applicant intends to comply with the conditions of the visitor visa.

12. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

13. The visa applicant is a 27 year old Indian national.  She states she wishes to travel to Australia to stay with her husband. 

14. The Tribunal was provided with substantial evidence of the visa applicant’s marriage to the review applicant in February 2014.  The review applicant spent time with the visa applicant following their marriage before returning to Australia due to work commitments.  He lodged a partner visa application in September 2014.  He then applied for several visitor visa applications which were refused by the department.  The review applicant flew to India to spend time with the visa applicant in March 2015. 

15. The review applicant indicated it was stressful being apart from his wife and it was costing a lot of money for him to go back and forth to India to spend time with her.  He applied for several visitor visas which were refused.  His friends also applied for visitor visas for their wives that were granted and his was not.

16. The review applicant indicated he has sufficient funds to support his wife during her stay in Australia as well as paying for all her travelling costs.  He indicated that all her family reside in India as well as his family and his wife is currently residing with his family.  He indicates that she is aware that if she overstays her visitor visa she may have difficulties with her partner visa application and this is incentive for her to return at the end of the visitor visa.

17. The review applicant subsequently advised the Tribunal that the visa applicant was granted her partner visa on 18 August 2015, providing a copy of her visa grant as evidence.  The visa applicant attended the hearing.

18. The review applicant requested the Tribunal to refund his application for review fee as his wife has been granted a partner visa and is residing in Australia on that visa.  He enquired about withdrawing the application and receiving a refund.  He was informed that he was able to withdraw his application however as the visa applicant was not granted a visa of the same class as the visitor visa, he was not entitled to a refund under the legislation. 

19. The review applicant told the Tribunal that it was always his intention as well as that of the visa applicant to only visit Australia so that she could stay with him as it was stressful being apart and it was costing money for him to travel to India to stay with her.  It was more economical for her to travel to Australia to stay with him.  The review applicant told the Tribunal that the department had been wrong in refusing the visa as he and his wife were in a genuine relationship and they were rude to his wife when they contacted her to ask questions as to why she wanted the visa.  He reiterated that it was always their intention that the visa applicant would comply with the conditions of the visa as otherwise she would jeopardise her opportunity of obtaining a partner visa and they could not be separated if that happened.  The review applicant consistently indicated that the intention at all times was for the visa applicant to only visit and that he was struggling financially and wanted the application fee returned.

20. The Tribunal explained to the applicant the purpose of the visitor visa and that it was for persons who genuinely intended to visit only and depart Australia prior to the expiry of the visa.   The visa applicant had been granted a temporary partner visa to reside in Australia with the review applicant.  She has entered Australia as the holder of a partner visa. This indicated that her intention was not to stay temporarily in Australia but to reside with him on a permanent basis.

21. The Tribunal confirmed that the visa applicant was the holder of partner visa and that was the visa she had entered Australia on.  The Tribunal indicated that the visa applicant was already the holder of a visa that entitled her to reside in Australia.

22. The Tribunal acknowledges that the visa applicant has been granted a partner visa and has entered Australia and that the review applicant no longer needs to proceed with this application and would like a refund of the full application fee.  However, the Tribunal’s role is to assess whether the visa applicant meets the relevant criteria, which in this case is whether she genuinely intends to stay temporarily in Australia.

23. The Tribunal finds that the visa applicant is already the holder of a substantive visa enabling her to reside in Australia.  The Tribunal is therefore not satisfied that the visa applicant genuinely intends to stay temporarily in Australia. 

24. Having considered all the evidence before the Tribunal about the visa applicant’s circumstances and the other relevant information before the Tribunal, the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted in this case.

25. For the above reasons the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are not met.

    DECISION

26. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Amanda Goodier
    Member