1928578 (Migration)

[2021] AATA 4929

1928578 (Migration) [2021] AATA 4929 (26 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1928578

MEMBER:David Crawshay

DATE:26 November 2021

PLACE OF DECISION:  Melbourne

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 26 November 2021 at 11:13am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – substantial compliance with visa conditions – employment and business – family caring commitments in India – previous compliant visits – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.212, 600.222, 600.611; r 2.05

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 2 August 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 6 July 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. 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 genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 27 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, as well as from [the review applicant’s wife]. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 family, specifically, the review applicant and his family. 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)).

10. The visa applicant has travelled to Australia previously on [Tourist visas], the last pf which was granted in December 2010 with condition 8101 (“no work”), 8201 (“no study or training for more than three months”) and 8503 (“no further stay”) attached. There is no evidence other than that he complied with these conditions. In relation specifically to condition 8503, there is no evidence that he sought a waiver so that he could apply for another visa onshore. This aspect is given some weight by the Tribunal.

11. 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

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

12. Based on the profile of the visa applicant, the Tribunal accepts that he will comply with these conditions, and this aspect is given some weight.

13. The Tribunal has also considered all other relevant matters (cl.600.211(c)). It has considered that the review applicant and his wife had applied for and were granted [permanent] visas for Australia. However, it accepts from information on that file, including the decision of the Tribunal (differently constituted) in relation to a review of the refusal of those [visas], that the circumstances that caused them to seek [permanent residence] do not apply to the visa applicant. [Details deleted.] This aspect is given no adverse weight by the Tribunal.

14. The Tribunal has considered the claims of employment. On his application form, the visa applicant claimed to be a farmer since February 2009. At hearing, the Tribunal heard from the review applicant that the visa applicant was [an occupation 1] agent as well as having land for farming. The review applicant said that [occupation 1] was his main job and that he had been working for the last two or three years. The review applicant was asked whether his father had a background or qualifications in [occupation 1], to which he replied that you do not need to study over there. He said that his father used to work in [occupation 1] when they were little.

15. When questioned by the Tribunal, the visa applicant said that he was in partnership with someone at a business called [Business 1]. He said that he had been working in [this business] for 10 years. The visa applicant was asked why he did not mention this during the Department stage, and he replied that he used to work alone and there was not much business, but now he was working in a partnership.

16. Following the hearing, the review applicant submitted several documents that sought to attest to the visa applicant having [an occupation 1] business. One of these documents is a registration certificate showing that the visa applicant incorporated the business and commenced business in April 2018. An enterprise called “[Business 2]” was granted “[Registration]” [in] October 2021. The Tribunal understands that [this] Registration is an online registration for micro, small and medium enterprises.[1] Income tax return acknowledgements were submitted for FY2018/19, FY2019/20, FY2020/21 and FY2021/22[2] showing income from farming in all financial years as well as from “[Business 2 variant]” in FY2019/20, FY2020/21 and FY2021/22. Finally, the review applicant submitted what purported to be a business card for a business called “[Business 1 variant]”, with “[the visa applicant]” featuring on it. The telephone number on the business card corresponds with the telephone number listed for the visa applicant elsewhere on the files.

    [1][Details deleted.].

    [2] The Tribunal assumes that this is a partial return given that FY2021/22 has not finished.

17. The Tribunal has considered the above information. It accepts that the visa applicant owns farming property and derives an income from it. It also accepts that he owns [an occupation 1] business and derives a lesser income from it. It accepts that these sources of income were equal to around AUD19,300 for the last full financial year (FY2020/21). The Tribunal puts some weight on this evidence.

18. The Tribunal has considered that the visa applicant is claimed to care for his father. This claim was only advanced at hearing, and when the Tribunal asked about what conditions the visa applicant’s father was living with, the review applicant said that he does not have any underlying condition but was old, and that the visa applicant was living with him and looking after his daily needs. He said that the visa applicant’s brother lives in the same town but his [other siblings] live further away. He said that the visa applicant’s siblings are working. He said that the visa applicant is the eldest brother.

19. When questioned by the Tribunal why he will be travelling without his wife, the visa applicant said that his wife will need to look after his father and cook for him. When asked if anyone else in his family would be able to look after his father, the visa applicant replied that his father has only ever lived with him.

20. After the hearing, the review applicant provided the Tribunal with an affidavit dated 28 October 2021 signed by [Father A]. Within the affidavit, [Father A] stated that he was aged about [age] and was the father of and living with the visa applicant at their address. He said that the visa applicant and his family were looking after him.

21. The Tribunal has considered the parties’ claims in relation to the visa applicant being a carer for his father. It acknowledges that some information was provided in support, including the above affidavit. It is not able to verify the author of the affidavit but assumes for present purposes that it is the visa applicant’s father, [Father A]. It notes that the visa applicant is claimed to be the eldest brother, although it has not seen evidence to substantiate this claim. However, the Tribunal is not satisfied based on this information alone that the visa applicant is a carer for his father. Alternatively, if the visa applicant were caring for his father, it is not satisfied that such caring would involve anything that could not be undertaken by other members of the visa applicant’s family. In this regard, it notes that there has been no evidence to substantiate the health situation of the visa applicant’s father beyond the review applicant’s claims that he is old and requires help with his daily needs. Indeed, the affidavit that was purportedly written by the visa applicant’s father does not contain any details of his conditions or the tasks that are undertaken in relation to his care. The Tribunal finally notes that the visa applicant’s family either live in the same town as him (as in the case of his brother) or a little further away (as in the case of his [other siblings]), and even though these family members are said to be working, there is little if any evidence to demonstrate that the needs of the visa applicant’s father are particularly onerous and could not be performed by them.

22. For these reasons, the Tribunal puts very little weight on claims that the visa applicant’s father is in need of care or that such care would only be able to be provided by the visa applicant and his family.

23. The Tribunal has considered previous travel by the visa applicant and his family members (other than by the review applicant who is dealt with above). In this regard, it accepts that the visa applicant’s wife travelled to Australia on a Visitor visa in the Tourist stream in 2019 and returned to India within the validity of the visa. As above, it accepts that the visa applicant had travelled to Australia previously on Tourist visas and on those occasions he left here before his visas expired, although it also notes that those visas had condition 8503 (“no further stay”) imposed on them. The Tribunal accepts based on this evidence that there has been compliance by the visa applicant and his wife. This is given weight although the weight is diminished as the current visa being applied for does not have condition 8503 placed on it (although the Tribunal notes that this is a discretionary condition that the Department may choose to impose if the visa is granted).

24. The Tribunal has lastly considered the composition of the visa applicant’s family and where they live. Based on the evidence, it finds that the visa applicant has a wife who lives with him in India as against his [number] children who live in Australia – being the review applicant in Melbourne and [other family locations]. [Another child] is said to be on a [specified] visa and there is no evidence to show that he has not complied with conditions of his visas. The Tribunal finds that the visa applicant has more of his family living in Australia than overseas, and this evidence is given weight of an adverse nature.

    CONCLUSION

25. The Tribunal has considered the above evidence and findings. It has weighed evidence showing that the visa applicant and his wife have complied with previous visas, is currently employed, and has some family in India (most notably, his wife) against other evidence showing that most of his immediate family live in Australia. As above, there is very limited evidence to substantiate the claims of him being a carer for his father. Indeed, there has been very little documentary evidence provided at the Department and Tribunal stages, although it notes that some evidence has been submitted belatedly by way of post-hearing submissions.

26. The Tribunal considers its role in this matter to ensure, as much as possible, that it is satisfied that the visa applicant will leave within the validity of any visitor visa granted to him. Against the backdrop of what it considers to be a fine balance of evidence for and against the visa applicant complying with the requirement to leave, it believes that something extra is required.

27. The Tribunal accepts that the visa applicant is unlikely to live as a non-citizen once in Australia and thereby overstay his visa. Furthermore, it has no evidence to suggest that the visa applicant would apply for protection while over here. Instead, it considers that any attempt by him to extend the period of his stay here would be by applying for another visa while onshore. In this regard, the evidence shows that he has [number] children in Australia as against no children offshore, and therefore would satisfy the “balance of family” test applicable to some visas (notably, parent visas). For these reasons, it believes that the Department should use its discretion in this instance to impose condition 8503 on the visa to provide some assurance that the visa applicant will leave Australia within the validity of the visa if granted. It has considered that, due to the visa applicant’s age, he is unlikely to be able to satisfy the criteria under r.2.05(4AA) or r.2.05(4AB) of the Regulations to seek a waiver of this condition.

28. 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

29. 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.

    David Crawshay
    Member