1608428 (Migration)

[2016] AATA 4710

1608428 (Migration) [2016] AATA 4710 (18 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Neeti Neeti

VISA APPLICANT:  Mrs Kavita Arora

CASE NUMBER:  1608428

DIBP REFERENCE(S):  N16/12026357

MEMBER:Tigiilagi Eteuati

DATE:18 November 2016

PLACE OF DECISION:  Brisbane

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 18 November 2016 at 12:18pm

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 27 May 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 18 May 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 had sufficient incentive to return to India. Specifically, the delegate indicated that the visa applicant had not provided credible evidence of her income source and mentioned the absence of income tax certificates.

5. The review applicant appeared before the Tribunal on 8 November 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 in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)). )). As the visa applicant has not entered Australia previously, this consideration is not relevant.

10. The Tribunal has also had regard to whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. In the absence of evidence that the applicant meets the criteria in clause 600.611(4), the applicant would be subject to conditions 8101 and 8201. These conditions prohibit work and study exceeding 3 months respectively. The applicant has a stable job as a teacher in India and her husband has an established hand tools business. The visa applicant also has savings to support herself during her visit. Additionally, the review applicant has said that she can also support the visa applicant during her stay. The Tribunal is satisfied that the applicant will not work during her stay and there is no evidence to suggest she will study in Australia for more than three months.

11. The Tribunal has considered all other relevant matters and has considered the relevant Departmental guidelines in PAM3.

12. As mentioned above, 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 had sufficient incentive to return to India. Specifically, the delegate indicated that the visa applicant had not provided credible evidence of her income source and mentioned the absence of income tax certificates.

13. The review applicant provided the Tribunal with copies of the review applicant’s income tax certificates for the last two years. The certificates indicate that the review applicant earned over 300,000 rupees during each of the last two years.

14. At the hearing, the review applicant said that the review applicant had strong incentives to return to India before her visa expired. These included:

    ·the visa applicant’s husband resides in India;

    ·the visa applicant’s mother resides in India;

    ·the visa applicant has a secure job as a teacher in India and the visa applicant also earns money by providing private tuition;

    ·the visa applicant and her husband own an established hand tools business which brings in 30 to 40 thousand rupees a month; and

    ·in addition to her marital home, the visa applicant owns a property in India.

15. The review applicant said that she wants her sister to visit her for less than a month as she and her husband have recently bought a house in Australia. She said that she wanted to show her sister that she is doing well in Australia. The review applicant said that her sister is totally committed to her life in India and is certain to return.

16. The Tribunal raised with the review applicant country information from the DFAT India report 2015 which indicates that there is widespread cultural bias against women in India and high levels of serious domestic violence. The review applicant said that she is very close to her sister and that her sister would tell her if she had any such problems. The review applicant said that the visa applicant has a happy marriage and has not been the victim of domestic violence. She said that the visa applicant and her husband are both Hindus from the same caste and that the marriage was arranged. She said that both families are very happy with the marriage. The review applicant said that the visa applicant has had not troubles with her husband’s family. She said that the visa applicant and her husband come from families of similar standing and financial means. The review applicant indicated that her sister does not fear harm in India and has no reason to remain permanently in Australia. The review applicant also said that her sister is of good character and would return to India within the period of her visa.

17. The review applicant said that she and the visa applicant are her mother’s only two children and that while their mother lives alone in the visa applicant’s house, the visa applicant lives only a ten minute walk away and provides care for her mother. She said that the visa applicant is particularly close to their mother. She said that there is no one else in India to care for their mother. The review applicant also indicated that she had vouched for her mother and her mother had visited Australia twice in 2015 and on both occasions, returned before her visa expired.

18. The review applicant said that both she and her sister understand that if her sister did not return within the period of her visa that this may jeopardise any future visits by her mother.

    FINDINGS

19. The Tribunal accepts that the visa applicant has a secure job as a teacher in India and that she and her husband own an established business there. The Tribunal accepts that the visa applicant has sufficient savings to support herself during her visit. The Tribunal accepts that the visa applicant owns property in India. The Tribunal accepts that the applicant has a happy marriage with her husband and that she has not been the subject of domestic violence from her husband or his family. The Tribunal accepts that the visa applicant had an arranged marriage and is of the same caste and religion as her husband. The Tribunal accepts that both the visa applicant’s family and that of her husband are happy with the marriage and that the visa applicant has had not troubles with her husband’s family.

20. The Tribunal accepts that the visa applicant is particularly close with her mother and that she cares for her mother in India. The Tribunal accepts that there is no one else who would care for the visa applicant’s mother if she were not to return to India. The Tribunal places significant weight on this factor.

21. The Tribunal is satisfied that the visa applicant has significant incentive to return to India during the period of her visa.

22. 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

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.

    Tigiilagi Eteuati
    Member