1603632 (Migration)

[2016] AATA 4601

1603632 (Migration) [2016] AATA 4601 (19 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatinder Singh

CASE NUMBER:  1603632

DIBP REFERENCE(S):  BCC2016/793856

MEMBER:Mary Urquhart

DATE:19 October 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 19 October 2016 at 9:31am

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 29 February 2016 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 25 February 2016. 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 intended a genuine temporary stay in Australia.

5. The applicant appeared before the Tribunal on 18 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sarbjit Kaur.

6. At the hearing the Tribunal the applicant provided a letter dated 10 October 2016 in relation to a subclass 309 application he lodged in November 2014. The letter indicates the matter is under active consideration the letter indicates the applicant will be given an update in some 4 weeks’ time.

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

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The visa applicant stated in his application that he seeks the visa for the purpose of visiting his spouse and child. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

11. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the purpose of a visitor visa the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211 (a)).

12. The evidence is that the visa applicant has previously been granted a variety of visas including an initial student visa since 2007. He has complied substantially with the conditions of those visas.

13. 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)

    ·8101 – must not work in Australia

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

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

14. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

15. At the outset of the hearing the Tribunal discussed with the review applicant his understanding of why this application was refused.  The Tribunal explained the requirements of cl. 600.211 and the matters relevant to its assessment.  The Tribunal explained that the primary issue for it to consider in determining the review application was whether the visa applicant genuinely intended to visit Australia temporarily; this included consideration of incentives for him to return home at the end of any visit.

16. The Tribunal discussed the applicant’s immigration history. The Tribunal notes the information contained in movement records which indicates that since his first arrival on 25 June 2007 he has been in Australia for the balance of the time with the exception of some 5 months. The Tribunal notes that since his most recent arrival on 26 February 2015 as the holder of an FA 600 Tourist Stream visitor visa he has obtained three further consecutive FA 600 visitor visas, granted to him onshore. He lodged this application on 25 February 2016.

17. The Tribunal notes that in his application the purpose of the visit was stated as “accompanying my wife and to look after our baby in Australia while waiting for my 309 visa to be granted”.

18. The applicant gave evidence agreeing with the outline of his immigration history in Australia. He explained that apart from a student visa he had met and married his first wife and that they had made application for a spouse visa. His evidence in this regard was vague and lacked detail. Ultimately he gave evidence that they did not ever obtain a spouse visa. His evidence though somewhat unreliable perhaps serves to explain to some extent why he remained in Australia.

19. The applicant gave evidence that he met and married his current wife Sarbjit Kaur on 8 November 2013. He said they returned to India and made a 309 application from there. He explained that at the time he was happy to remain in India but his wife and daughter wanted to return to Australia as it is easier for her here. So they obtained visitor visas and returned. He said since then they had applied again and took the view that if it was granted they would stay and if not they would return to India. They then applied again on the same basis.

20. The applicant gave evidence that he had recently followed up on the progress of the 309 application. He said medicals had been completed and outstanding documents submitted. A letter concerning that application was considered. The letter states the application is under active consideration. The Tribunal discussed with the applicant that the purpose of the visitor visa is not to provide a hold whilst people waited for other visas to be granted.

21. The applicant explained that his wife works and he looks after their young daughter at home. he said his wife was pregnant with their second child. The Tribunal discussed with the applicant the incentives he may have to return home to India if granted the visa. In response he said there was not any reason.

22. The Tribunal explained that the purpose of a tourist visa is to give tourists an opportunity to travel to Australia temporarily for the purposes of genuine tourist activities. The Tribunal asked the applicant if he understood this and could say what the purpose of a visitor visa is. He replied “just visit”.

23. Under 359AA the Tribunal put to the applicant matters relied upon by the delegate in refusing the application.

24. In his decision the delegate noted in particular that the visa applicant had repeatedly postponed his declared “proposed departure date”. He noted in particular that in the 600 application lodged on 30 September 2015 the applicant declared the proposed departure date to be 30 December 2015. In the 600 application lodged on 21 December 2015 the applicant declared the proposed departure date as 21 March 2016.  In this application he declared the departure date to be 25 May 2016. The applicant commented frankly that he just wanted to be here to support his wife and daughter.

25. The applicant’s desire to remain in Australia to support his spouse and young child is understandable and given there is a 309 application in the process the Tribunal  has some sympathy for him. However, sympathy is not the criteria for the grant of visa similar circumstances such as the applicant has explained affect many people. Furthermore the visa applicant has been on notice of the expectation that visitor visa holders balance their time in Australia with time spent outside Australia as set out above.

26. The applicant’s wife Ms Sarbjit Kaur gave evidence that she first came to Australia on a student visa and obtained permanent residency in 2012. She said if her husband has to return to India she will not be able to work.

27. The Tribunal discussed with her that things might be difficult however she might consider childcare for her daughter as a helpful option.  She gave evidence that she works in her own business which is a pizza and kebab shop. She said she earns $1000 a week.  She said she owns the house they live in at Craigieburn, with a mortgage. Her mortgage repayments are $916 fortnightly. She receives $323 from the government for her daughter a fortnight. She said she manages financially. The witness confirmed her pregnancy and said her baby was due in May 2017.The intent of the visitor visa program is clear. The Tribunal discussed the nature of a tourist visa with her and the criteria including what incentives there were for her husband to return home. In response she gave evidence of reasons for him to stay

28. It was submitted by the applicant’s representative that if the Tribunal had concerns as to whether the applicant would return home it should consider his need to be offshore for the grant of a 309 visa. The Tribunal has considered the submission but finds against the argument as a convincing reason for the grant of a visitor visa.

29. The Tribunal records that the intent of the visitor visa program is clear. It is designed to allow tourists an opportunity to travel to Australia temporarily for the purposes of genuine tourist activities. Having considered all the evidence the Tribunal is unable to be satisfied that the applicant intends to remain in Australia temporarily for the purpose for which the visa is granted.

30. For the above reasons the Tribunal is not 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 not met.

    DECISION

31. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Mary Urquhart
    Member