1517988 (Migration)

[2016] AATA 4430

1517988 (Migration) [2016] AATA 4430 (16 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Davinder Singh Bhandaal

VISA APPLICANT:  Ms Kulwinder Kaur

CASE NUMBER:  1517988

DIBP REFERENCE(S):  P15/02064657

MEMBER:Mila Foster

DATE:16 September 2016

PLACE OF DECISION:  Sydney

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 16 September 2016 at 11:54am

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 22 December 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act)[1].

   [1] The visa applicant had lodged an application for review of the decision on 26 December 2015 however she did not have standing to apply for review: see s.338(7) and s.347(2)(c) of the Act. As that review application was not properly made under the law it was not a valid review application and the Tribunal did not have jurisdiction to review the decision to refuse the visa applicant at that time.

2. The visa applicant applied for the visa on 17 December 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream. The visa applicant’s parents applied for visitor visas at the same time. They all applied for the purpose of visiting the review applicant, their brother and son.

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 visa applicant’s unemployment, dependence on her parents for day-to-day support, and no indication of any future job prospects could be considered to be strong incentives for her not to return to India. The delegate was thus not satisfied that a genuine visit was intended by the visa applicant. 

5. The review applicant appeared before the Tribunal on 14 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

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.

   Evidence before the Tribunal

8. In deciding whether cl.600.211 is met I have considered the documents on the Department file which contains the visitor visa applications made by the visa applicant and her parents[2], documents submitted to the Tribunal by the visa applicant and review applicant, Departmental movement and visa records[3], as well as the oral evidence of the visa applicant and review applicant. On the basis of that evidence I make the following findings.  

   [2] Department file no. P15/02064657.

   [3] AAT file 1517988 at ff. 74, 90, 91, 93, 95-98.

   a.The review applicant and visa applicant were credible witnesses. They gave evidence which was forthright and consistent.

   b.The visa applicant is 25 years old, not married and lives with her parents.

   c.The visa applicant has had a tertiary education, attaining an arts degree in 2013 and teaching qualification in 2014[4]. She subsequently completed a short computer course.

   d.The visa applicant has not worked since completing her university studies. She has been offered teaching positions but has not taken up those offers because the positions were located in areas that would have required her to move out of home and her parents will not permit her leave home while she is unmarried.

   e.The visa applicant’s plans for the future are to marry and then, if her husband agrees, to obtain a teaching position. The written statement she made to the Tribunal[5] that she would marry and commence a teaching job in April 2016 after returning from visiting the review applicant were aspirational. Her parents are looking to find her a suitable husband and she expects they will find her a suitable husband to marry in the foreseeable future.

   f.The visa applicant’s parents were granted the visitor visas they had applied for but have not visited Australia because they will not leave the visa applicant behind in India and travel without her while she is unmarried.

   g.The visa applicant and her parents wish to visit Australia together for the purpose of visiting her brother, who has resided here for 7 years – to see where and how he lives.

   h.The review applicant is now married to Jasdeep Kaur Bhandaal; his wife has applied for a partner visa in India and is currently in Australia visiting the review applicant on a visitor visa.

   [4] AAT file no 1517988 at ff.7, 11.

   [5] AAT file no 1517988 at f.4.

   The purpose of visit

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her brother, the review applicant for a period of about one month. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

   Substantial compliance with previous visa conditions

10. 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)). In this case, the visa applicant has not held a substantive visa or any subsequent bridging visa in the past, thus the issue of whether she has substantially complied with the conditions of such visas does not arise for consideration.

    Intention to comply with Subclass 600 visa conditions

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 conditions to which a visa in the circumstances of this case would be subject are 8101 – must not work in Australia and/or 8201 – must not engage in study or training in Australia for more than 3 months: cl.600.611 (3) or (4).

12. The visa applicant completed her tertiary education in May 2014. I accept that her plans for the near future are to marry and take up a teaching position after she marries if her husband agrees. I am thus satisfied that she would comply with condition 8201. The visa applicant and the review applicant have stated that the visa applicant’s father and the review applicant will finance the visa applicant’s trip to Australia. I have had regard to the financial records provided in support of the visa applications and submitted to the Tribunal about the financial positions of the visa applicant’s father and review applicant. I have also had regard to the fact that the visa applicant’s father has financially supported her to date and there is no suggestion that he would not continue to do so until she is married. I am satisfied that there would be no need nor would the visa applicant work in Australia if granted the visitor visa. I am thus satisfied that the visa applicant intends to comply with condition 8101.

    Other relevant matters

13. The Tribunal has considered all other relevant matters (cl.600.211(c)) including the matters listed in the applicable part of the Department’s Procedures Advice Manual 3 in GenGuideF – Visitor visas – Visa application and related procedures.

14. I have had regard to the fact that the visa applicant is young, unmarried, unemployed and owns no assets. However, I accept that her plans for the future are to return to India after visiting her brother to marry and, if her future husband agrees, to work as a teacher. Given her parents would not permit her to move away from the family home to work and would not visit Australia without her, I believe that they would not agree to allow her to remain in Australia unmarried. I believe that the visa applicant will do as her parents expect her to do. I believe that the plans for the visa applicant’s future marriage are a strong incentive for her to return to India.  

15. Further, there is no evidence before me that the visa applicant, her parents, her brother or her brother’s wife have adverse migration histories. The review applicant entered Australia on a student visa and was granted permanent residence on the basis of an employer sponsorship. He claims he has never breached any visa conditions and there is no evidence before me that he has. His wife has applied for a partner visa in India, and entered Australia in May 2016 on a visitor visa.  Thus, there is nothing in the migration history of the visa applicant or her family to suggest that she would seek to remain in Australia if granted a visitor visa to visit her brother.

16. The review applicant has resided in Australia for 7 years now. He was recently granted permanent residence and married. He is becoming settled here. I thus find it entirely credible that the visa applicant and her parents simply wish to visit the review applicant in Australia to see how and where he lives and where he will make a future for himself.

17. I find that any circumstances which might be viewed as an incentive for the visa applicant to remain in Australia beyond a temporary stay, such as having a brother in Australia or possible employment prospects here, do not outweigh the factors which indicate that she genuinely intends to stay temporarily in Australia.

    Conclusion

18. 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

19. 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.

    Mila Foster
    Member

    
    
    

AAT file no 1517988 at f.13.