1515800 (Migration)

[2016] AATA 3895

1515800 (Migration) [2016] AATA 3895 (19 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ranjit Aggarwal

VISA APPLICANT:  Mr Rishab Aggarwal

CASE NUMBER:  1515800

DIBP REFERENCE:  BCC2015/3252883

MEMBER:Deborah Morgan

DATE:19 May 2016

PLACE OF DECISION:  Adelaide

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 19 May 2016 at 4:47pm

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 5 November 2015 (the delegate) to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Rishab Aggarwal (the visa applicant) applied for the visa on 9 October 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. He was sponsored for the grant of the visa by his paternal uncle, Mr Ranjit Aggarwal, the review applicant.

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 by the evidence that the visa applicant intends a genuine visit to Australia.

5. The review applicant appeared before the Tribunal on 18 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Indian) and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Claims on the Department’s file

8. The visa applicant is a citizen of India who was born on 23 April 1997. He is aged 19 years at time of decision.

9. In 2012 the visa applicant applied to visit Australia with his parents. He was 15 at the time. The family had no right of appeal because his uncle was not an Australian permanent resident at that time. 

10. The visa applicant has sought a visit of one month to Australia. The purpose of his intended visit is to spend time with his relatives in Australia (the review applicant and his wife and two children) and to tour Australia. He claimed that he will carry sufficient funds to Australia and the review applicant will also give him “full financial support.”

11. The visa applicant is a student at Apeejay College of Fine Arts, Jalandhar, and had been studying there for four months at time of application. Confirmation of his enrolment at the College was provided to the Department – refer folio 15.

12. The visa applicant has never married or been in a defacto relationship.

13. The visa applicant’s sister, Miss Rishika Aggarwal, currently aged 15 years, travelled to Australia for one month in late 2015.

14. The review applicant was granted Australian citizenship on 7 April 2014.  He submitted a statutory declaration that declared he had invited the visa applicant, who is his nephew, to visit him and his family in Melbourne. The review applicant provided some documents of a financial nature and claimed that he has access to sufficient funds to meet the visa applicant’s requirements during his intended stay. He will arrange travel insurance for the visa applicant.

    Further information provided at review

15. A copy of the refusal of the visa applicant’s application for a Visitor visa in 2012 was submitted together with a Family Chart which includes information about the visa applicant’s relatives who have visited Australia as sponsored family visitors.

    Issue before the Tribunal

16. 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.

17. In the present case, the visa applicant seeks the visa for the purposes of visiting his relatives and touring Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

18. 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)). The visa applicant has not previously entered Australia, therefore this subclause does not apply to him.

    Whether intention to comply with visa conditions

19. 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.

20. The visa applicant was not available to give oral evidence owing to his exam schedule, evidence of which was provided after the hearing.

21. The Tribunal received oral evidence from the review applicant that the visa applicant, who is the son of his brother Mr Sharwan Aggarwal, does not intend to work or study during a visit to Australia. The review applicant also stated that the visa applicant will abide the time limits imposed on him by the Department of Immigration. He promised that the visa applicant would not overstay his visa.  As an indicator of his commitment, the review applicant said he offered to pay a security bond. He has paid a security bond to the Department with respect to visits by his brother-in-law on two previous occasions.

    Other relevant matters

22. The Tribunal has also considered all other relevant matters (cl.600.211(c)) relevant to a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. 

23. This visa applicant is a 19 year old single male university student. The review applicant told the Tribunal that the visa applicant is unemployed and totally financially dependent on his father, a businessman. Evidence was received that the visa applicant lives with his parents, his younger sister and his grandmother.

24. The Tribunal accepts that the visa applicant’s university studies and his family may act as incentives for him to return to India but, given his age, his single and his unemployed status, there is the possibility that once he arrives in Australia those factors may no longer induce him to return to his home country.

25. Owing to the visa applicant’s circumstances at time of decision, for the reasons above, this is a borderline decision for remittal. However, the evidence of prior travel to Australia by six of the visa applicant’s relatives, including his teenage sister and his grandmother with whom he lives, are relevant matters which indicate that members of his family are disposed to comply with visa conditions. 

26. Department's movements' data indicates that each of the visa applicant’s six relatives have departed Australia in a timely manner before the expiry of their Visitor visas. The Tribunal considers that the visa applicant’s six relatives historically compliant visits should be given due weight.

    Offer of security bond

27. During the hearing the review applicant made an offer of payment of a bond if necessary. 

28. The imposition of a bond is a matter for the Department to consider in its discretion. 

29. The Tribunal considers that the offer of a security bond indicates that the review applicant genuinely believes the visa applicant will only visit Australia temporarily.

30. The Tribunal is satisfied that the offer of a bond provides an additional incentive for the visa applicant to comply with his visa conditions. 

    CONCLUSIONS

31. Weighing all relevant matters in this case, 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.

32. 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

33. 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.

    Deborah Morgan
    Member