1503654 (Migration)

[2016] AATA 4446

1503654 (Migration) [2016] AATA 4446 (23 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Mann Asha Rani

CASE NUMBER:  1503654

DIBP REFERENCE(S):  BCC2014/2096794

MEMBER:Antonio Dronjic

DATE:23 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The tribunal affirms the decision not to grant the applicant Skilled Regional Sponsored (Provisional) subclass 489 visa.

Statement made on 23 September 2016 at 4:03pm

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 Skilled Regional Sponsored (Provisional) Subclass 489 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa as a subsequent entrant on 25 August 2014. The delegate refused to grant the visa on the basis that the applicant failed to meet the cl.489.311 as the delegate was not satisfied on the evidence that the applicant demonstrated dependency on the family head as prescribed in r.1.12 (e)(ii) and defined in r.1.05A.

3. The applicant sought review of the delegate’s decision on 14 March 2015. With the review application, the applicant submitted a copy of the primary decision record.

4. On 4 August 2016 the tribunal wrote to the applicant advising that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend the video hearing on 7 September 2016. With the hearing invitation letter, the tribunal invited the applicant to provide evidence of property ownership in India, evidence of pension and other income the applicant receives from India and any other evidence of her dependency on her son.

5. On 15 August 2016, the applicant submitted:

   ·Transaction search results from Bupa;

   ·Summary of Bank west account held by Mr Barinder Deep Mann from 9 July 2016 to 9 August 2016

   ·Bundle of Bupa tax invoiced issued in the name of the applicant from July 2015 to June 2016; and

   ·Bundle of receipts for medical services issued to the visa applicant in May and June 2016.

6. The applicant appeared before the tribunal on 7 September 2016 to give evidence and present arguments. The tribunal also received oral evidence from the applicant’s son, Mr. Barinder Deep Singh Mann.

7. At the commencement of the hearing I explained to the applicant that, that in order to be granted a subclass 489 visa, she is required to meet the cl.489.311 to the Migration Regulations which prescribes that she is a member of the family unit of a person (in this case her son) who holds any of the visas listed at cl.489.311 (a-d). I explained that this was the reason why the delegate refused her visa application.

8. This is the summary of the visa applicant’s evidence:

9. The visa applicant is 60 years of age, female national of India. Her husband passed away in May 2006. She has two children, both living in Australia. Her son was granted a subclass 475 visa on 11 November 2011 and arrived in Australia on 29 July 2012. In India, she has one sister.

10. The applicant previously travelled and stayed in Australia as a holder of a visitor’s visa from 10 June 2013 until 6 September 2013. Her last entry in Australia was on 24 May 2014 as a holder of a visitors’ visa granted on 19 May 2014 that was to remain valid until 24 November 2014. She gave evidence that her intention was to return to India before her visitors’ visa ceases. Some six months later, in November 2014, she changed her mind and decided that she would like to remain living in Australia.

11. I noted that she applied for subclass 489 visa as a dependent member of her son’s family unit on 25 August 2014 and inquired why she lodged this application in August 2014 if she decided to remain in Australia in November 2014 as previously stated in her evidence. She stated that her son wanted her to apply for the visa and if was his decision to lodge the application with the department in August 2014.

12. She gave evidence that she worked as a teacher in India for 32 years and retired in January 2014. Her husband also worked as a teacher in India. She started receiving Indian pension from February 2014. She currently receives approximately INR18, 000 per month and these funds are automatically deposited into her bank account in India.(State Bank of Patiala)

13. Her salary was approximately INR50, 000 before she went into retirement. She stated that in June or July 2014, she received approximately INR500, 000 from her provident fund and deposited those funds into bank account in India she jointly operates with her son from 2006.

14. She stated that she is not sure how much money she currently has in her bank account in India as she did not use the money that she receives as pension since arriving in Australia. She further stated that she neither receives bank statements from India nor she is able to access her account visa internet banking.

15. She gave evidence that she has an old house in India that is not liveable and that was transferred into her children’s names after her husband passed away. She is not renting this property. She gave evidence that in December 2013, she moved from this house and rented a two bedroom house in the city of Bhatinda. She stated that her son paid rent for this house (INR20,000 per month)and was sending money through Western Union.

16. She is and has been living since May 2014 with her son who is married and has a 14 months old child. She stated that she is not working in Australia and looks after her grandson. She claims that she started receiving financial support from her son soon after she retired from her job.

17. Her daughter, who lives in Melbourne, is also married and has a child who is three years of age. She stated that she recently travelled to Melbourne to see her daughter and her family. She gave evidence that she is not receiving any financial support from her daughter as this is not ‘customary’ in India.

18. She gave evidence that in June 2014 she took a loan from her relative in India of INR500, 000 as she was not ‘financially sound at the time’. She claims that she needed the money for medical expenses.

    Evidence from Mr. Barinder Deep Singh Mann

19. The witness confirmed her personal details and nature of his relationship with the visa applicant. He stated that he was granted a subclass 475 visa in November 2011 and arrived in Australia in July 2012. He gave oral evidence consistent with evidence obtained from the visa applicant. Towards the end of the hearing, the witness stated that he was granted permanent visa in May or June 2015.

    Post hearing correspondence

20. On 7 September 2016 the tribunal wrote to the applicant inviting her comment on or response to the following information under section 359A:

    In his oral evidence given at the hearing, your son, Mr Barinder Deep Singh Mann stated that he was granted permanent visa in May or June 2015.

    The tribunal has obtained your son’s movement records from the Department and they confirm that your son was granted a permanent visa subclass 887 on 7 May 2015.

    This information is relevant to the review because it reveals that your son no longer holds any if the visas prescribed in cl.489.311 (a) to (d).

    If we rely on this information in making our decision, this would be the reason or part of
    the reasons for affirming the decision under the review as you would no longer be able
    to meet the cl.489.311.

21. On 20 September 2016, the applicant wrote to the tribunal (tribunal folios 54-55) stating inter alia that, at the time she applied for subclass 499 visa, her son was holding Skilled 475 visa and reiterating that she is and has been dependant on her son since her husband passed away in 2006.

22. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    RELEVANT LAW

23. Clause 489.311 provides:

    The applicant is a member of the family unit of a person (the primary applicant) who holds any of the following visas granted on the basis of satisfying the primary criteria:

    (a)      a Skilled — Independent Regional (Provisional) (Class UX) visa;

    (b)      a Skilled — Designated Area-sponsored (Provisional) (Class UZ) visa;

    (c)      a Subclass 475 (Skilled — Regional Sponsored) visa;

    (d)      a Subclass 487 (Skilled — Regional Sponsored) visa;

    (e)      a Subclass 489 (Skilled — Regional (Provisional)) visa.

24. Based on the evidence before me, I find that the applicant is not a member of the family unit of a person (the primary applicant) who holds any of the following visas prescribed in cl.489.311 (a) to (d).

25. Based on the departmental movement records and oral evidence received from Mr. Barinder Deep Singh Mann at the hearing, I find that Mr Mann was granted a permanent visa subclass 887 on 7 May 2015. Accordingly, he no longer holds a subclass 475 (Skilled — Regional Sponsored) visa and it follows that the applicant is not a member of the family unit of a person who holds any of the qualifying visa prescribed in cl.489.311 (a) to (e). 

26. In light of these findings, the visa applicant cannot meet the criteria for the grant of the visa sought.

    DECISION

27. The tribunal affirms the decision not to grant the applicant Skilled Regional Sponsored (Provisional) subclass 489 visa.

    Antonio Dronjic
    Member