1515771 (Migration)

[2016] AATA 4069

1515771 (Migration) [2016] AATA 4069 (4 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Shamanna Ravi

VISA APPLICANT:  Ms Sarala Devi Shamanna

CASE NUMBER:  1515771

DIBP REFERENCE(S):  BCC2015/2990076

MEMBER:Antonio Dronjic

DATE:4 July 2016

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 04 July 2016 at 11:08am

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 17 November 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 15 September 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 Sponsored Family 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 17 may 2016 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 her sister. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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. Based on the evidence before me, I find that the visa applicant travelled to Australia on 3 March 2000 (using a different passport and different surname, Nagaraja, as she was married at the time). The visa was granted on 24 February 2000 as was valid until 3 June 2000. The departmental movement records indicate that the visa applicant departed Australia on 29 April 2000, well within the visa validity period. There is no evidence before me that she did not comply with visa conditions.

11. There is further evidence before me that the visa applicant’s parents were granted a multiple entry, six months visitor’s visa. They travelled to Australia on 5 December 2015 and departed within the visa validity period on 7 May 2016.

12. The review applicant gave evidence that the visa applicant applied for a Skilled (Regionally Sponsored) visa subclass 475 and that the application was closed under a “cap and cease programme’. The review applicant submitted a copy of the decision record related to the subclass 475 application dated 23 September 2015 according to which, and pursuant to s.39(1) of the Act, the application is taken to have never  been made.

13. The review applicant stated in her evidence that the visa applicant applied for a skilled visa subclass 136 and this application was refused by the department in November 2015.

14. 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.600.612):

    ·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.

15. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal has discussed the matters relevant to cl.600.211 (b) and (c) below. The Tribunal made the following findings on the oral evidence and the documentary evidence available.

16. The visa applicant is 45 years of age, female national of India. She has no children and she divorced from her husband in 2004. She lives at Bangalore together with her parents and is currently not involved in any serious romantic relationship. She works as an insurance consultant for a motor bike dealership and earns approximately INR120000 per year. She does not own real-estate under her name. She has a savings of approximately $6,000 and apart from Australia; she previously travelled top Dubai, Singapore and Malaysia.

17. In India she has completed a Bachelor of Arts degree. In 2002 she has undertaken a hairdressing course. In 2004 she applied for Australian permanent residency under the skilled visa programme. Her nominated occupation was Hairdresser. This application was refused by the Department.

18. The review applicant is the visa applicant’s brother. He is married and has two children age 14 and 20. He came to Australia in 1996 as a skilled migrant. He works as a quality engineer at Bosh and owns a property at Melbourne. His wife is registered nurse. He has two siblings. His brother lives in Australia and his sister (the visa applicant) in India. He maintains regular communication with his sister by telephone. He indicated his willingness to place a security deposit if requested by the department.

19. Based on the evidence before it, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal considered the fact that the visa applicant is living with her parents in India and looks after them.

20. I am satisfied on the evidence that the visa applicant will not overstay the visa period or apply for another visa in Australia. I give significant weight to the findings that the visa applicant and her parents previously travelled to Australia and departed within the visa validity period.

21. The applicant has provided evidence of her employment and income in India I am satisfied that her employment and family ties in India will serve as a strong incentive to return to India after completing her visit to Australia. The review applicant indicated his willingness to provide a substantial security deposit and I would recommend that the department makes such request.

22. I am satisfied that the visa applicant will abide by the conditions of the visa and not seek to work or study whilst in Australia. On balance, I am satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Accordingly I find that the applicant meets cl.600.211.

    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.

    Antonio Dronjic
    Member