1511796 (Migration)

[2015] AATA 3949

1511796 (Migration) [2015] AATA 3949 (22 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr RADHE SHYAM GODARA

VISA APPLICANT:  Mr RAKESH GODARA

CASE NUMBER:  1511796

DIBP REFERENCE(S):  N15/01134796

MEMBER:Brook Hely

DATE:22 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 22 December 2015 at 4:35pm

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 25 August 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 21 August 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 that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 4 December 2015 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 his brother (the review applicant). 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)). There is no evidence before the Tribunal to show that the visa applicant has ever previously held a substantive or bridging visa.

10. 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 conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(2), (3) and (4)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

11. The visa applicant’s compliance with these conditions is discussed below.

12. The Tribunal has also considered all other relevant matters (cl.600.211(c)), which is also discussed below.

13. The Tribunal acknowledges the concern of the delegate that the visa applicant’s bank statement showed recent deposits made in the month prior to the visa lodgement, suggesting that the funds were credited for the purposes of the visa application. The Tribunal is also mindful that notes on the Department file indicate that the visa applicant has previously been refused this visa on five occasions. The Tribunal is also mindful that the income certificates provided by the visa applicant indicate only a very modest level of income, of approximately AUD$12,000 annually. The Tribunal accepts that this lack of financial means presents a risk that the visa applicant may seek to work unlawfully in Australia and/or remain in Australia after the end of his permitted stay, in breach of conditions 8101 and 8531. The Tribunal also acknowledges the significant disparity in economic conditions between Australia and the visa applicant’s home country of India, which might also tempt the visa applicant to breach these conditions and/or seek to remain in Australia on a more permanent basis rather than only visit temporarily.

14. Nevertheless, for the reasons that follow the Tribunal is satisfied that the requirements of cl.600.211 are met in this case. The Tribunal notes that evidence has been provided to demonstrate that the visa applicant has significant real estate holdings in India, including agricultural land with a combined value of approximately $886,000, a residential property valued at approximately $384,000 and a shop valued at approximately $153,000. No concerns appear to have been raised at the Department’s stage with respect to the genuineness of this evidence and the delegate’s concerns focused only on the applicant’s bank statements. With respect to the visa applicant’s income, the review applicant explained at the hearing that the vast majority of this income was generated in cash and therefore is not formally declared in his tax return in order to minimise tax obligations. Whilst this raises some concerns as to the ethical scruples of the visa applicant in not declaring his full income to the Indian government, the Tribunal is prepared to accept that his real earnings are higher than those disclosed in his income certificate.

15. The Tribunal notes that it found the review applicant to be a credible witness at the hearing. He has provided evidence to show that he is a lance corporal with the Australian Armed Forces and the Tribunal accepts that this adds to his level of accountability should the visa applicant default on his visa obligations, as this could reflect poorly on the review applicant in his professional capacity. The Tribunal also accepts that the review applicant’s wife recently gave birth to a child and they require additional assistance at this time due to the review applicant’s work commitments, which frequently require him to be away from home.

16. The Tribunal acknowledges that the visa applicant does not have any established history of compliance with Australian immigration conditions. However, his passport records frequent travel outside of India, particularly to Thailand and Malaysia. The review applicant explained in his evidence that the visa applicant runs an import/export business and has travelled regularly throughout Asia, particularly to Thailand. The Tribunal notes that the stamps recorded in his passport do not indicate any non-compliance with his visa obligations in travelling to those countries.

17. The Tribunal also accepts that the review applicant and his wife have provided statutory declarations of support or sponsorship in relation to previous visitor visa applications submitted by his mother, mother-in-law, brother-in-law and sister-in-law. The Tribunal notes that it has confirmed from Department movement records that the review applicant’s mother travelled to Australia on two previous occasions on a visitor visa and that she departed Australia within the permitted period on each occasion. Whilst not directly relevant to the visa applicant’s immigration history, this positive immigration history of the review applicant’s mother in travelling to Australia to visit the review applicant on a visitor visa provides general support to the review applicant’s claim that he will also ensure that the visa applicant complies with his visitor visa obligations.

18. The Tribunal has also taken into consideration the likelihood that the review applicant may wish to sponsor his parents and other family members for visits in the future and that this will provide further incentive for the visa applicant to comply with his visa conditions. The Tribunal has also taken into consideration the offer made by the review applicant at the hearing to provide a $25,000 bond if required in order to ensure the visa applicant’s compliance with his visa.

19. The Tribunal also accepts from the documents provided that the visa applicant is married and has two sons, aged 8 and 13. Together with the visa applicant’s mother, the Tribunal accepts from this evidence that the visa applicant has strong family ties in India that will provide a further incentive for him to return following his visit to Australia.

20. The Tribunal also accepts the oral evidence of the review applicant at the hearing that the visa applicant previously provided the necessary funds and support to sponsor the review applicant to travel to Australia on a student visa. The Tribunal accepts that the visa applicant is also considering sending his own children to Australia for study in the future and that part of his motivation in travelling to Australia is to consider whether Australia would be an appropriate schooling destination for his children.

21. The Tribunal accepts from the above evidence that the visa applicant’s purpose in coming to Australia is to visit the review applicant and his family, as well as to engage in sightseeing and to consider the appropriateness of sending his children to Australia for study in the future. The Tribunal also accepts that the visa applicant will then return to his family in India after this visit and that he will comply with the conditions of his visa.

22. For the above reasons the Tribunal is 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 met.

    DECISION

23. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Brook Hely
    Member