1607693 (Migration)

[2016] AATA 4705

1607693 (Migration) [2016] AATA 4705 (22 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dhaval Bansal

CASE NUMBER:  1607693

DIBP REFERENCE(S):  BCC2016/1583554

MEMBER:Mila Foster

DATE:22 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 22 November 2016 at 12:19pm

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 10 May 2016 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 April 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. The applicant, an Indian national, had entered Australia on 1 August 2014 on a Subclass 457 visa which ceased on 1 February 2016[1]. He was granted a Visitor visa on 11 February 2016 which ceased on 2 May 2015[2] during which he made the current Visitor visa application to extend his stay from 2 May 2016 until 31 July 2016[3].

   [1] Tribunal file at f. 8.

   [2] Tribunal file at f. 29.

   [3] Department file BCC2016/1583554 (Department file) at f.6.

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. Noting that the applicant had applied for the visa to wait for an invitation for the (permanent) Subclass 190 visa, the delegate refused to grant the visa on the basis that the applicant did not meet cl.600.211 because the visitor visa program did not support applicants remaining onshore to wait for a permanent visa.

5. The applicant appeared before the Tribunal on 25 October 2016 to give evidence and present arguments.

6. For the following reasons, I have concluded that the decision under review should be affirmed.

   VISA APPLICATION

7. As indicated above the reason the applicant gave in his Visitor visa application for seeking the visa was that he was waiting for a Subclass 190 visa invitation[4]. The Subclass 190 visa is a permanent visa designed for skilled applicants who submit an expression of interest (EOI) and are then invited to apply for the visa. Other information provided in the visa application was that the applicant was unemployed and would self-fund his visit with funds from an Australian bank account.[5]

   [4] Department file at f.9.

   [5] Department file at f.5.

8. The Department subsequently sought further information from the applicant in relation to his visa application[6]. Specifically, he was asked whether he had plans to apply for another visa after his Visitor visa and, if so, what he was planning to do after this stay; details of work during his stay in Australia, evidence that he had an incentive to return to India, his reasons for requesting the further stay, and evidence of adequate funds or access to adequate funds[7]. In response, the applicant stated that he did have plans to apply for another visa - he said he wanted to apply for a Subclass 190 visa,[8] He said he had worked in Australia during the time he held the Subclass 457 visa which gave him full working rights but did not work when he had the (previous) Visitor visa.[9] He said his incentives to return to India included his family ties and obligations he may have to care for his parents’ properties, and he referred to previous travel to England.[10] He submitted a number of Indian documents but no documents relating to funds he had in an Australian bank account or any funds held elsewhere in his name.[11] In relation to his reason for requesting a further stay the applicant stated:

   The only reason I’m requesting this stay is because I am waiting for subclass 190 visa invitation. I submitted EOI E0006791345 on 20 March 2016 for this visa with 60 points and processing times are 3 months according to this webpage … I would not have applied for this visa if I got the invitation.[12]

   [6] Department file at ff.61-66.

   [7] Department file at ff.61-67.

   [8] Department file at f.54.

   [9] Department file at ff.53, 54.

   [10] Department file at f.53.

   [11] Department file at ff.20-51.

   [12] Department file at f.53.

   WRITTEN SUBMISSIONS PROVIDED ON REVIEW

9. In a written submission to the Tribunal in support of his review application the applicant stated the following:

   a.He submitted unmodified text to the Department which he had never intended to upload. He had intended to upload his detailed plans to visit and tour hubs in Australia he had not seen.

   b.Before he uploaded the information requested by the Department, he was busy arranging property documents from India and trying to figure out which documents were required and where to get them such as evidence of funds. While he was able to get property documents one day after the deadline and upload them, the problem was what amount of funds had to be shown for the whole period of the stay. The Department help line told him that usually $1000 or more a month was required. He had the required funds in his Australian bank account but the statement was not available. Someone told him that banks can issue a letter showing current funds but he panicked on the morning of 10 May as he missed the deadline by more than two days and was still not able to get the funds letter from the bank. Due to his panic, he uploaded the wrong document. By the time he got the letter from the bank, the Department had made its refusal decision. 

   c.The wait for the Subclass 190 visa was just a miniscule part of it but he chose to include it because it was a requirement to provide the best information known to you.

10. Also submitted were documents indicating he had booked to stay at accommodation in Brisbane, Coolangatta, St Kilda and Adelaide during June and July 2016.

    FINDINGS AND REASONS

11. 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.

    Purpose of stay

12. In the present case, the applicant has claimed to seek the visa for purposes which include travelling and visiting parts of Australia. 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 conditions in the past

13. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, 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)).

14. The last substantive visa held by the applicant was the Visitor visa he was granted on 11 February 2016. He was subsequently granted a Bridging visa on 29 April 2016 when he lodged his current Visitor visa application. According to a Departmental record, there is one condition attached to that Bridging visa: 8101 – must not work in Australia.[13]

    [13] Tribunal file at f.29.

15. The applicant testified at the hearing that he has not worked since he was granted the Visitor visa due to visa conditions. That would mean that as at the time of the hearing the applicant had not worked for eight months. A bank statement for his Australian bank account would provide evidence of the funds he says he has for his stay and possibly any income earned such as wages. In his written submission to the Tribunal, he said the bank statement was not available and by the time he got a letter from the Bank it was too late. His oral evidence for not providing the bank statement to the Department was unclear, convoluted and less than forthright. He seemed to indicate that he did to have a bank statement when the Department asked evidence of adequate funds but did not explain why. He said he panicked and uploaded the information he had before he went to the bank and that by the time he got to the bank he had missed the Department deadline. A bank statement is generally readily and quickly available either online or from a branch. Given the unsatisfactory nature of his testimony and his failure to provide the bank statement, I am not satisfied that the applicant has not been working. I am therefore not satisfied that the applicant has complied substantially with the conditions of the subsequent bridging visa.

    Intention to comply with conditions

16. 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(3)): 8101 – must not work in Australia, and 8201 – must not engage in study or training in Australia for more than three months.

17. According to the current Visitor visa application, the applicant was in England from 24 January 2011 until 24 June 2011 and from 29 July 2011 until 31 May 2013. He testified that had been granted student visas for the purpose of undertaking a Master degree in IT there. There is no evidence before me to contradict this testimony. Given the applicant has a higher degree and there is no evidence before me to indicate that he wishes to engage in study or training for more than three months, I accept that he intends to comply with 8201.

18. However, I am not satisfied that the applicant intends to comply with 8101. As stated above, I am not satisfied that he has not worked since he was granted the Visitor visa. Further, there is no documentary evidence to show that he has adequate funds to support himself without working if he is granted a further Visitor visa. The documentary evidence he submitted to the Department was of assets owned by his parents in India and is not evidence of funds he can access for his stay. 

    Other relevant matters

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

    Ties in India

20. The applicant testified that he is unmarried and has no children. His family in India consists of his parents and sister. He says he is close to them but I give these ties little weight as an incentive for him to return to India given that, as he stated in his written submission to the Tribunal, he has daily contact with them via Skype. He also stated in that submission that his parents have three properties and he ‘may’ be needed to care for those estates. I find this vague and speculative and hence not a strong incentive for the applicant to return to India. The applicant has not indicated that he personally owns any assets in India or that he has any employment or other ties there. Overall, I find that the applicant’s ties in India provide little incentive for him to return there.

    Travel history

21. I have had regard to the applicant’s previous travel to England. The purpose of that travel was to study and thus I have given that little weight because his current application is for a Visitor visa.

    Reasons for applying for visa

22. I have placed the greatest weight on the conclusions I have drawn from the evidence the applicant has given about his reasons for applying for the current Visitor visa.

23. In response to being asked about the outcome of his EOI, the applicant testified that he had lost hope so his withdrew his EOI but then immediately made another EOI for the same visa. Asked why he did that, he said he thought his EOI had been lost in the government database and while highly unlikely that was the thought he had on the day he withdrew it. The applicant’s explanation lacked credibility. Not only did it seem to me that the applicant himself did not believe his EOI had been lost, there is no sound basis to think it had been lost. Further, if the applicant had a genuine concern about his EOI he could have simply contacted the Department to inquire about the status of his application.

24. I noted at the hearing that in his written submission to the Tribunal the applicant said that his purpose in seeking the Visitor visa was to visit places around Australia and that waiting for an invitation to apply for the Subclass 190 visa was only a minuscule reason for applying for the Visitor visa. Further, that he indicated that he had made a mistake in saying that his reason for applying for the Visitor visa was to wait for an invitation to apply for the Subclass 190 visa. I put to the applicant that this seemed hard to believe given he expressly stated in writing to the Department on two occasions that the only reason he was applying for the Visitor visa was to wait for an invitation to apply for the Subclass 190. Further, that he had made no mention in either his visa application or the additional information he provided to the Department that he wanted to undertake tourist activity. In a rambling response, the applicant essentially repeated what he has said in his written submission to the Tribunal but did not address the particular issue put to him. Specifically he did not explain why, if he had applied for the Visitor visa for tourist activity, he made no mention of that in either his visa application or the additional information provided to the Department. Nor did the applicant explain why, even if the document he uploaded was a draft, he would have incorrectly stated in that draft that his sole purpose in applying for the Visitor visa was to await the outcome of his EOI if that was just a miniscule part of his reason for applying for the visa and his actual reason for applying was to undertake tourist activity. I thus do not accept his explanation was truthful.

25. As it had been five months since the applicant had applied for review, I asked the applicant whether he had stayed at any of the accommodation he had booked. He said he had not because he could not enjoy himself while waiting to hear from the Tribunal. I asked why his previous three month Visitor visa had not been enough time for him to have visited the places in Australia he wanted to see. The applicant gave a brief, vague and hesitant reply about having to help a friend financially. Asked whether he had undertaken any tourist activity during that time, he said he had not. It is not clear why helping a friend financially would have prevented the applicant from undertaking any tourist activity especially given he stated in his current Visitor visa application that he would be self-funding his stay. Asked what he had being doing given it seemed he had undertaken no tourist activity, the applicant testified that he stayed home in a kind of depression and that his friends would take him to clubs in Sydney to try to cheer him up. Questioned about his depression, in particular whether he had been diagnosed, the applicant said he could feel it. He said he questioned why he was here and why he did not return to his parents and have an easy life. I found the applicant’s testimony about his depression vague and not evident in his buoyant demeanour at the hearing. In the absence of any medical evidence, I do not accept that the applicant has been suffering from depression. Therefore, I do not consider the reasons the applicant has given for not having undertaken any tourist activity to be true.

26. Questioned further about whether he wanted to stay to await the outcome of his EOI, the applicant’s response, that he did not and then that he was not sure, was vague. Questioned further, he then said that he had been applying for employment opportunities to multinational companies in Australia and indicated he would leave Australia and return if a company would sponsor him. He said he could not look for such opportunities from India because it was better to be here to have an interview in person. When I queried whether he was saying he was hoping to be sponsored for permanent residence, he replied that was not the case and that he was just filling in time because he had nothing else to do. He said his ultimate goal was not permanent residence but to visit tourist places such as the Gold Coast and Sunshine Coast. It appeared to me that the applicant changed his evidence when he realised I might draw the adverse inference that he had an intention to stay in Australia permanently. This indicates to me that rather than be truthful, the applicant was prepared to change his evidence if he felt it would be advantageous.

27. Finally, at the end of the hearing the applicant offered another reason for applying for the Visitor visa. He repeated that permanent residence in Australia was not his goal, that Australia was not the only country that offered permanent residence, and that in fact he was waiting for a reply to an application he had made for permanent residence in Canada. He added that he had applied for the Visitor visa to save himself the hassle of catching a plane back to Australia to visit places here because he may not have the opportunity to return or have enough money to visit in the future. I do not find that evidence credible. There was no mention of any application to Canada or the practicality of extending his visit rather than having to try to return in the future prior to that in the hearing or any time before that. This evidence appeared to me to be a mere afterthought by the applicant, something he invented to bolster the claim that he had a genuine intention to stay temporarily for the purposes of tourism rather than permanent residence in Australia.

28. As the applicant has not undertaken any tourist activity to date and I do not accept the reasons he has given for not doing so to be true, I conclude that he does not have any intention of undertaking tourist activity in Australia. I conclude that the applicant invented the claim that he wants to undertake tourist activity in response to the reason the delegate refused his Visitor visa application. Further, the fact that the applicant withdrew his EOI only to immediately lodge another without any sound reason combined with the evidence he gave about applying to Australia companies to sponsor him leads me to conclude that his intention is not to stay in Australia temporarily but to stay permanently.

    CONCLUSION

29. For the above reasons, I am not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and find that the requirements of cl.600.211 are not met.

    DECISION

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

    Mila Foster
    Member