1837529 (Migration)

[2020] AATA 5620

1837529 (Migration) [2020] AATA 5620 (20 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1837529

MEMBER:Adrienne Millbank

DATE:20 November 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 20 November 2020 at 12:39pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – review applicant’s visa history – visa applicant’s previous visa application refused on same grounds – no relevant travel by visa applicant or any other family member – visa applicant elderly and uneducated, owns no property and receives small pension – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, Schedule 8, condition 8531

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 19 November 2018 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 is a [Age]-year-old national of India. She has never been in employment, is widowed, and has three children: the review applicant and sponsor, who lives in Australia and has one son; a daughter who lives in [Country] who has three children; and a daughter who lives in India who has three children.

3. The review applicant is an Australian citizen. His immigration history, which was raised by the delegate in the decision, is as follows. He came to Australia in 2009 on a student visa, as a dependent of his then spouse. He applied for a further student visa, again as a dependent of his then spouse. He and his then spouse separated. The student visa application was refused in October 2011. A review was lodged with the then Migration Review Tribunal (MRT), but the review applicant was not included. His divorce from his then wife was finalised in March 2012.

4. The review applicant’s Bridging visa A, granted in association with his second student visa application, ceased in May 2012. He remained in the country unlawfully until he was located in January 2013 by Queensland Police. He was detained in [a] Detention Centre. In interviews in January 2013 he told the Department that he did not wish to depart, and was considering lodging an application for a protection visa, on the grounds he feared for his safety in India because of his divorce. He lodged an application for a Bridging visa E, which was refused. He applied for review of that decision, which was remitted by the then MRT in January 2013 on the understanding that he had made arrangements to depart the country.

5. The review applicant did not depart Australia. He lodged an application for a protection visa. That application was refused in November 2013. He then lodged an application for a Partner Combined (Subclass 820 & 801) visa. That application was refused in April 2015. The decision to refuse was made on the basis that he did not meet the Schedule 3 criteria. That decision was remitted on review by the then MRT, which found there were compassionate and compelling grounds to waive the Schedule 3 criteria, namely: his sponsor suffered from an intellectual impairment and other physical and psychological ailments, and could not cope financially or emotionally without his presence and support; and there was a child of the relationship, born on [Date]. 

6. The review applicant was granted a Partner (Residence) (Subclass 801) visa in August 2016, and Australian citizenship in January 2019.

7. The visa applicant applied for the visa on 21 August 2018. 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.

8. 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.

9. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. The delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purposes for which the visa is granted.

10. The decision records that the applicant: had not indicated the presence of any family members in India; had never been employed; and had not submitted evidence of ownership of property or other significant assets, that would encourage her to return. The delegate therefore was concerned that the applicant may not comply with her visa conditions. The delegate referred to the nature of the sponsor’s (the review applicant’s) arrival, his ongoing residence, and the circumstances regarding his past immigration history, and concluded it was likely that the applicant would seek to change her status once in Australia, in order to remain permanently.

11. At the time of application, the visa applicant indicated that she planned a stay of up to three months, and that she planned to arrive on 15 September 2018 and depart on 30 November 2018. At the time of decision, she indicated that she intends to come as soon as the coronavirus situation permits, and to stay for about two months.

12. The review applicant appeared before the Tribunal on 17 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in India. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

13. The review applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

14. The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were raised by the review applicant in relation to holding a telephone hearing and the Tribunal is satisfied that he was given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. In the present case, the visa applicant seeks the visa for the purposes of visiting her son and grandson in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

18. 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)).

19. The visa applicant has never previously entered Australia, or travelled to any other country. A previous visitor visa application, in 2017, to visit her son in Australia, was refused on the same criterion: cl.600.211. The delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purposes for which the visa is granted.

20. No other family members of the review applicant have visited Australia, and none have been sponsored or invited to visit by the review applicant. There is therefore no history of compliance on the part of the visa applicant or any other family member.

21. 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 three 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.

22. The visa applicant stated in her application form that she does not intend to engage in study or training in Australia while on a visitor visa. The visa applicant is [Age] years old, which, according to her son, the review applicant, is considered ‘old age’ where she lives in India. She has never been in paid employment. In the circumstances, the Tribunal accepts that the visa applicant intends to comply with conditions 8101 and 8201 while on a visitor visa.

23. The representative submitted in his response to the Tribunal’s hearing invitation, that the visa applicant would have condition 8530 imposed, ‘that will not allow her to lodge other visa applications in Australia’. He submitted that as a [Age] -year-old widow, overstaying her visa was not an option, because ‘she cannot not speak English, is uneducated and has no prospects of employment or access to health care’.

24. The Tribunal has considered the representative’s submission. For the reasons discussed below, however, the Tribunal is not satisfied that the visa applicant genuinely intends to return to India within the validity of a visitor visa, and, therefore, that she intends to comply with condition 8531. 

25. The Tribunal has also considered all other relevant matters relevant to whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted: cl.600.211(c).

26. At hearing, the visa applicant confirmed that she has not ever visited or applied to visit her daughter and grandchildren in [Country]. When asked why, she stated she ‘just wants’ to see her son and grandson, and the house they live in, in Australia. She confirmed that her daughter and grandchildren in India live about [Distance] kilometres from her, and that she lives alone. The review applicant advised that the visa applicant lives in a house that is still in the name of his deceased father, that he has inherited. He stated that he travelled to India in 2019 ‘to do the paperwork’ to receive his inheritance, but that it has not yet been finalised.

27. A letter dated 27 January 2017 from the [Employer], was provided at the time of application, certifying the visa applicant is in receipt of a widow pension equivalent to AUD[Amount] per month. The representative confirmed at hearing that the visa applicant’s pension has not changed. The Tribunal acknowledges that India is a less expensive country to live in, but does not find the visa applicant’s economic circumstances, of receiving a pension of less than AUD50 a week, a significant incentive for her to return to her home country. The visa applicant owns no property or other significant assets, and lives alone. No claim was made or evidence provided that the visa applicant has significant social or community connections. The Tribunal considers that the visa applicant has only limited, and weak, incentives to return to her home country.

28. At hearing, the review applicant confirmed he is divorced from his sponsor for his partner visa, and that she was his second wife. He stated that his second wife is currently living in ‘his house’, because they share custody of their son, and it makes shared parenting easier. He stated that his second wife pays him rent, for a room, in ‘his house’. The Tribunal raised with the review applicant his immigration history. The Tribunal put to the review applicant that he obtained a permanent visa on the basis that there were compelling and compassionate reasons for his continuing presence in Australia, including that his second wife has an intellectual impairment and other physical and psychological problems and he had to stay because she relied on him for financial and emotional support. The Tribunal asked how come, in that case, they are divorced, and she pays him rent. The review applicant stated that his second wife has a ‘learning difficulty’. He stated that the relationship ended when she left him and returned to live with her mother.

29. The Tribunal asked the review applicant why he didn’t leave the country after he was released from detention, as he had claimed at the time, he had arrangements in place to depart. The review applicant stated that he likes living in Australia, and he applied for a protection visa.

30. Following the procedures of s.359AA of the Act, the Tribunal advised the review applicant that the information before it about his immigration history, including Tribunal file material from his previous reviews, would be the reason or a part of the reason, subject to his comments in response, for affirming the decision under review. The Tribunal advised the review applicant that the information was relevant because it showed that he arrived in Australia on a temporary visa, claiming to be a genuine temporary entrant, and stayed. The Tribunal put to the review applicant that the information showed he pursued every avenue open to him to avoid leaving or being removed, and to stay in this country. The Tribunal advised the review applicant that his immigration history suggested that his mother might also, after arriving on a temporary visa, stay in this country.

31. The Tribunal advised the review applicant that he could seek extra time and consult with his representative, before providing comments in response to the information and the Tribunal’s concerns. The review applicant did not seek extra time. He stated that his first wife did not tell him that she had divorced him, so he was unaware that he was unlawfully in the country before he was detained. He stated that he has stayed in Australia because he likes living here. He stated that he didn’t know, in the circumstances, what he could say to convince the Tribunal that his mother intends only a temporary visit. 

32. The Tribunal asked the visa applicant, at hearing, how her son came to Australia, and why and how he has remained here. The visa applicant conferred with a person in the room with her, in India. The Tribunal asked the visa applicant not to confer with the person in the room with her before responding to the question, but she did not comply with the Tribunal’s request. She responded, after some time, that her son came to Australia with his wife, because he was married. She stated that he ‘stayed’, and that she didn’t know how or why. The Tribunal did not find the visa applicant an open or reliable witness, and does not accept that she plans a temporary stay of two to three months.

33. The Tribunal has considered the visa applicant’s circumstances in India of living alone, in a property that the review applicant has inherited and is in the process of transferring into his name. The Tribunal accepts that the review applicant wants to spend time with his mother, and wants her to bond with her grandson in Australia. The Tribunal considers that the review applicant, the visa applicant’s only son, feels responsible for his mother’s future welfare, and is likely to consider her future welfare could be secured by her staying in Australia. In light of the review applicant’s immigration history, where he arrived on a temporary visa and stayed, the Tribunal is not satisfied that the visa applicant will not similarly seek to stay in Australia.

34. The Tribunal finds the visa applicant has a strong incentive in the presence of her son, whom she would consider responsible for her welfare, to stay in Australia.

35. The Tribunal has considered the evidence, arguments and circumstances of the visa applicant and the review applicant. The Tribunal finds that the visa applicant’s incentives to stay in Australia outweigh any incentives she has to return to India. 

36. For all the reasons discussed above, 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

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

    Adrienne Millbank
    Member