1731690 (Migration)

[2018] AATA 5286

1731690 (Migration) [2018] AATA 5286 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731690

MEMBER:Tania Flood

DATE:20 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 December 2018 at 12:33pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – Sponsored Family stream – not a genuine temporary entrant – review applicant’s failed protection application – subsequent permanent resident after partner application – reluctance to consider security bond – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 6 October 2017 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 6 September 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family 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 visa was refused on the basis that the visa applicant did not meet cl.600.211 because the Delegate was not satisfied he genuinely intends to visit Australia temporarily.  

5. The review applicant appeared before the Tribunal on 20 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone.

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

   BACKGROUND

7. The visa applicant is [an age] year old Indian male from Haryana Province. He is unmarried.  His parents and [sisters] are living in India.  He would like to visit Australia for up to 6 months to visit his brother and sister-in-law.  He holds a [qualification] which he completed in August 2017.

8. The review applicant is the visa applicant’s brother. He is employed as a full-time [and] his wife works as [occupation].

9. In a letter to the Tribunal dated 10 December 2017 the review applicant states that his brother (the visa applicant) opened a business [in] September 2017 ten days after he applied for the Visitor visa showing he had no intention of staying in Australia for the period applied for.  His intention was only to stay for two to four weeks because he had clients to attend to. He secured two [clients].  Supporting documents in respect of the visa applicant’s business were provided.

   TRIBUNAL HEARING

10. The review and visa applicants evidence to Tribunal is summarised as follows:

11. The review applicant is married with no children.  He is the owner operator of a [Business] and his wife is [occupation].

12. The review applicant first came to Australia on a Student Visa which was subsequently cancelled.  He later applied for a Protection Visa on the basis that he was formerly involved in the Khalistan movement in India and because Sikhs are discriminated against by the authorities.  His application was refused and he appealed it unsuccessfully and then unsuccessfully appealed to the Minister.  Thereafter he met and married his wife and is now an Australia Permanent Resident.  His brother, the visa applicant, is unaware of the fact he applied for a Protection visa or claimed involvement with the Khalistan movement.

13. The review and visa applicant’s family in India consists of their parents and [sisters].  The sisters are married and live with their husbands.  The visa applicant lives for the most part in Delhi where his business is located.  Their parents no longer work but formerly his father was [an occupation] and still occasionally does [work].  Their father is [age] and their mother is [age].

14. The review applicant has not previously sponsored any family members to visit Australia.

15. The review and visa applicants are Sikh.

16. The visa applicant is single and has no children.  He is a qualified [professional] with his own [company].  He commenced the business about one year ago and has secured a few big clients.  The business made approximately [amount] in profit in the first year of operation.

17. The review and visa applicant’s family home has been placed in the name of the visa applicant.  He also purchased a parcel of land next to their home in his own right.

18. The review and visa applicants last saw each other in 2017 when the review applicant returned to India.

19. The visa applicant has never travelled abroad. When the visa application was made the visa applicant had more time available as he had recently graduated from University.  It was shortly after making the application that he commenced his business and therefore his availability to visit Australia for six months changed.  Now his time is even scarcer and at best he will visit Australia for a week if the visa is granted.  The purpose of the visit is for tourism and to see his brother.

20. The visa applicant claims no political involvement in India and asserts that his Sikh religion does not cause him any problems.

21. The visa applicant will return to India after a visit to Australia as he is the primary support for his parents and because his business is doing well and he wants to further that success.  Unlike the review applicant he undertook tertiary studies and is more focused on his career in India.

22. The review applicant would not be in a position to provide a security bond as he is growing his own business and has recently purchased some land.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. 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.

24. In the present case, the visa applicant seeks the visa for the purposes of visiting family and tourism.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

25. 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)).

26. The evidence before the Tribunal is that the review applicant entered Australia as the holder of a Student visa which was cancelled for non-compliance with condition 8202.  He held a series of Bridging visas and also applied for a Protection visa which was refused.  He obtained Permanent Residence by marriage.

27. The review applicant’s wife arrived in Australia as the holder of a Partner Provisional visa.  She was subsequently granted a Partner visa but later divorced her husband.  She is an Australian citizen.

28. The visa applicant has never visited Australia.

29. 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.

30. For the following reasons, the Tribunal is not satisfied the visa applicant will comply with condition 8531 or that he genuinely intends to visit Australia temporarily.

31. The Tribunal accepts that the visa applicant is the remaining son in India with certain responsibilities towards his parents.  However, the evidence before the Tribunal is that his parents are still relatively young and at least in the case of his father, maintaining some, albeit contract employment.  The visa applicant lives for the most part in Delhi indicating that the parents are in a position to care for and support themselves.  In any event, they have [daughters] living in the same province.  Further, the visa applicant is single with no dependents of his own. Based on this information, the Tribunal concludes the visa applicant’s family ties will not be a strong inducement for him to return to India at the end of a visit to Australia.

32. The Tribunal acknowledges and accepts on the available evidence that the visa applicant has a year old business however it is not satisfied that the period of investment has been significant or that the business has yet reached a stage of development which would induce him to return to India.  The available evidence indicates some profits were made in the first year of operation but not in the Tribunal’s view to the extent that it will act as a strong inducement for him to return. 

33. The Tribunal has also placed weight on the review applicant’s migration history which indicates he went to lengths to remain in Australia permanently after entering with a view to staying in the country temporarily. When discussing this with him during the hearing the review applicant accepted that the Tribunal could draw a negative inference from his migration history. 

34. The review applicant’s evidence to the Tribunal in respect of the claims he made for protection did not convince the Tribunal that he genuinely maintained any fear of returning to India for those reasons.  The Tribunal accepts the review applicant’s evidence that his circumstances and actions on coming to Australia are distinguishable from his brother’s however in the absence of any strong inducements to return to India the Tribunal cannot be satisfied that he will not attempt to remain in Australia after his permitted stay as did his brother.  The present evidence is that the visa applicant would now only want to come to Australia for one week whereas he originally requested a stay of six months.  The review applicant submits that the commencement of the visa applicant’s business just ten days after his application for a Visitor visa is proof that he did not intend to remain in Australia for six months.  On the contrary, the evidence suggests to the Tribunal that the visa applicant knew of his intentions to start a new business before making his Visitor visa application and that he would have known then that a stay of six months in Australia at that time would not have been feasible.  He now states that he would only come to Australia for one week if granted the visa for tourism and to visit his brother.  Given their evidence is that they saw each other last year in India the Tribunal finds his willingness to travel to Australia for just one week somewhat unconvincing.  The review applicant also submitted at hearing that the main purpose for seeking the review of the Delegates decision is to erase the visa refusal from his brother’s migration history.  While the Tribunal understands this rationale it does not overcome the concerns expressed herein.

35. Lastly, when the matter of a potential security bond was discussed with the review applicant during the hearing he appeared genuinely surprised and reacted negatively to the suggestion.  While he submitted this was for financial reasons the Tribunal has nevertheless placed some weight on his apparent unwillingness to consider the possibility given his hope that his brother’s migration history will not be negatively affected by a negative decision.

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

37. 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

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

    Tania Flood
    Member