1921587 (Migration)

[2021] AATA 5009

1921587 (Migration) [2021] AATA 5009 (5 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1921587

MEMBER:Angela Cranston

DATE:5 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 5 October 2021 at 14:00pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – incentives to remain or return – daughter and her family in Australia, other family members in home country, some requiring personal care – previous overstay and visa refusals – advice from agent – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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 Home Affairs on 30 May 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The visa applicant applied for the visa on 24 May 2019. 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 Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.    In her visitor visa application, the applicant stated that she wanted to visit the review applicant (her daughter), her son in law and grandson, that she was born in [year], was married, was a homemaker and lived in West Bengal and that her spouse and son born in [year] were not traveling with her. She also stated that she had previously arrived in Australia in 2005 and departed in 2008 and that her previous visitor visa applications had been refused because of her poor immigration history.

5.    Also included was the following letter:

I am writing this letter to address my previous refusal in 2012 and to make the department aware about the situation that led us to get a poor immigration history. Our intention was not bad and we never wanted to travel on fraudulent ways, we were misguided. My husband is a qualified [Occupation 1] and we have had a proper guidance then we would have been settled in Australia as lawful citizens as well.
[Mr A] had been working as a [Occupation 1] in [Country 1] from 1987 till 2004. He resigned from his employment as he was contacted by one of the local agents in Kolkata, [Mr B], who motivated him and said that he will help him and his family to get a permanent resident visa in Australia. [Mr B] also stated that we need to be in Australia so that PR application can be lodged. He promised to arrange for a visitor visa and stay for us to travel to Australia initially.
We agreed and he did arrange for us to travel to Australia on a tourist visa in 2005 after we changed my husband’s name from [Mr A] to [Alias A] and got a new passport made for my husband. It was good until [Mr B] started to avoid the initial promise of helping us get the PR in Australia as my husband and us started to get anxious. [Mr B] diverted us to one of the lawyers in Australia who proposed that he will get us humanitarian visa as PR will not be possible. For the good future of our kids we decided to go ahead. But that too was a fake promise as it was refused. We were devastated and left alone.
In order to feed the family [Mr A] started working at [a workplace] until we received a bridging visa to come back to India in 2008.
My husband [Mr A] (with his actual name) commenced his employment as a [Occupation 1] in [Country 1] in 2012 and is still working there.
But now we do not want to get settled in Australia instead I just want to visit my daughter and her family and to spend time with my grandson.
I really appreciate if my application is considered and I am permitted to visit Australia for three months to visit my daughter and her family.

6.    The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 and the review applicant applied for review.

7.    The review applicant appeared before the Tribunal on 28 September 2021 to give evidence and present arguments.

8.    Prior to hearing, the Tribunal received the following submission:

I am writing to appeal the decision to refuse the grant of a tourist visa to my mother [the applicant] that was refused on 30 May 2019.
In the refusal notice it was stated the reason for refusing this tourist visa being not enough sufficient evidence was provided to demonstrate strong incentives to return home after the intended visit to Australia.
I wish to inform that my mother has very strong reasons to return home after the intended short-term stay to visit my son and myself here in Australia.
My mother is the primary caregiver to my uncle who suffers from schizophrenia and relies on her to purchase and administer his medication as well as help him with his daily routines.
Furthermore my aunt who is my mother’s older sister suffers from poor health and regularly falls ill, during these times my mother is also the primary caregiver to my aunt when she needs assistance to attend the doctor and cares for her when she is weak from illness.
In the two weeks she will be here, my father has agreed to take time off to temporarily care for my uncle and aunt while she is away but he is another reason for my mother to return home after her visit.
My father who is not coming here to Australia with her is my mother’s biggest reason to return home at the end of the trip. I also have a younger brother who lives in India and he too is another reason for her return home.
The reason for the application for her to come visit us in Australia is that after having been apart for over four years, it has become harder to go back to visit my family in India with my son starting school. I do not wish to take him out of school to go overseas however it is also not viable to take him during school holidays due to the financial stress it would cause.
This is the reason to apply for my mother to come to us in Australia to see us instead. It has been years since she has been able to interact with her only grandson or cook for her daughter. That is all I wish for.
For the duration of her stay my only intention is to spend time with her and my son and maybe see some local sites at most. I just wish for my mother to be able to still be able to maintain a relationship with my son other than through video calls.
These are the reasons I wish for you to consider when reconsidering the decision for the grant of a tourist visa for my mother.

9.    At hearing, the review applicant stated that she had been waiting since 2012 to see the applicant and only wanted to see her for a two-week visit. She stated her family had been in Australia in 2005, they had overstayed and applied for protection but everyone made mistakes, they had returned to India, were settled, and were not at an age to re-establish their lives in Australia and had no other family in Australia. She stated the applicant had been in India since she had returned from Australia where she had 5 sisters, her husband who had retired who also had his brothers and they also had a married son. She stated they would not leave to start over again in Australia and she promised the applicant would leave. The review applicant stated if she had been sensible, she would not have let them previously do the wrong thing but they had made a mistake. The Tribunal put to her that the applicant had arrived in February 2005 and did not leave until October 2008 which was over three years later. The review applicant stated it was because her father was scammed, he had been a [Occupation 1] but had been told he could live in Australia regardless of his skills not knowing that in future that would cause the family to remain apart  She felt they had been punished enough.

1. When asked why the applicant would return to India, the review applicant stated the applicant was going to be 60, had sisters and all her relatives in India who she visited regularly because they were not in lockdown. She also stated her parents had their own social life and routine and she did not think they wanted to give that up. She stated they did not work, had their own home and no mortgage and they lived a comfortable life and had their own routine. She also stated the applicant could not speak English properly and the review applicant did not want her to start her life over again.      .

2. Movement records indicate that the review applicant and applicant arrived in Australia on 26 February 2005 on tourist visas that ceased on 26 March 2005 when they were granted bridging visas. They departed Australia on 24 October 2008.  The review applicant arrived back in Australia on a spouse visa on 20 June 2009.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Initial issue

1. The Tribunal exercised its discretion (and pursuant to Covid-19 Practice Direction for Migration and Refugee Division dated 27 April 2020) to hold the hearing by teleconference. The hearing was held during the Covid-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter. 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 teleconference.

2. While the Tribunal spoke to the review applicant by teleconference, the Tribunal's observations were that the review applicant was given ample opportunity to submit all the evidence that she wanted the Tribunal to consider. The Tribunal considers that in these circumstances, it has given the review applicant a fair opportunity before and during the hearing to provide all the evidence and arguments and evidence that she wanted the Tribunal to consider.

Substantive issue

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant, her daughter. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

3. 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)).

4. 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(4)):

   8101 – must not work in Australia

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

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

6. The Tribunal has considered the personal circumstances of the applicant who was born in [year], is married and lives in West Bengal where she also has a married son. The applicant has property and family in India including her husband and son and other extended family including sick relatives. The Tribunal is satisfied that the applicant has ties to India.

7. Although the applicant has her husband, son and other relatives in India, she also has ties to Australia in that the sponsor (her daughter) and her daughter’s family is here.

8. In addition, when the applicant last travelled to Australia, she overstayed her temporary tourist visa, unsuccessfully applied for a protection visa and departed some three years after she first arrived. While the review applicant apologized for her families past migration history and said that it was because her father had been scammed, the applicant has shown a propensity to use Australia’s migration system in order to obtain what she wants when it suits her. Given the applicant’s poor migration history and despite the review applicant's protestations to the contrary, the Tribunal is not satisfied that if the applicant were to again enter Australia that she would not seek to remain if she wants to.   Neither does the Tribunal consider any separation from her husband would be permanent if she should seek to change her visa status onshore and subsequently sponsor him.

9. The Tribunal has some sympathy for the review applicant who clearly wants to see the applicant. However, 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, even if the review applicant’s intention is for the applicant to return to India.

10. 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

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

Angela Cranston
Member