2205667 (Migration)

[2022] AATA 4299

2205667 (Migration) [2022] AATA 4299 (3 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2205667

MEMBER:Lilly Mojsin

DATE:3 November 2022

PLACE OF DECISION:  Sydney

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 3 November 2022 at 3:26pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – support visit to family – previous compliant family visits – family responsibilities in India – property ownership and financial resources in India – offer of a security bond – decision under review remitted       

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 17 March 2022 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 17 March 2022. 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 (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 the visa applicant intended a genuine visit.

5. The review applicant appeared before the Tribunal on 19 October 2022 to give evidence and present arguments.

6. The hearing was held via Teams video. The Tribunal determined it was reasonable to hold a hearing by Teams video during the COVID-19 pandemic. The Tribunal 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 video.

7. The Tribunal is satisfied that the review applicant was given a fair opportunity to give evidence and present arguments. The review applicant confirmed that she could hear and see well. The Tribunal was able to interact with the review applicant. All parties were able to maintain appropriate communication throughout the proceedings. The Tribunal is satisfied that the hearing provided a real opportunity to be heard.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In support of the review applicant’s visitor visa application, the review applicant provided the Department with:

   a.A copy of the visa applicants Indian National Identity Card issued [in] July 2019.

   b.Indian Tax Returns issued in 2018/19, 2019/20 and 2021/22 in the visa applicant’s name.

   c.A Balance Confirmation Certificate from [Bank 1] in the name of [Mother A] disclosing a balance of 3,91,388.37 (approximately $7587.93 Australian dollars).

   d.A Medical Certificate from [Doctor A] of [Clinic 1] dated 13 February 2022 declaring that [the review applicant] has been suffering from depression and anxiety, is taking medication, and has been referred to counselling.

   e.A copy of a Medicare Card (reference [number]) showing the review applicant as the third listed person.

   f.A Bank Statement in the name of [Brother-in-law A] from [Bank 2] dated 1 November 2021 to 23 February 2022 disclosing a closing balance of $83,496.06.

   g.A copy of an Australian Citizenship certificate in the name [Brother-in-law A] dated [in] September 2014.

   h.A copy of a [Driver’s licence] in the name [Brother-in-law A] with the expiry date [in] January 2025.

   i.An email from the Western Australian Police Force to [Brother-in-law A], dated [in] February 2021, indicating the [specified] Family Violence Team wished to follow up with him in relation to a recent incident attended by police in which he was involved.

   j.A handwritten police order dated [in] February 2022 prohibiting [Brother-in-law A] from communicating or attempting to communicate with [the review applicant] amongst other things.

   k.A copy of the biodata page of the visa applicant’s Indian passport (reference [number]) issued [in] 2014.

   l.An Indian government vaccination certificate issued in the name of the visa applicant. Second dose dated [in] October 2021.

   m.A Bank Statement from the [Bank 1] in the visa applicants name dated 15 March 2022 disclosing a closing balance of 594472.41 (approximately $11,525.16 Australian dollars).

   n.A statement concerning the visa applicant’s planned activities.

   o.An affidavit from [Mother A], the mother of the visa applicant declaring that she is sponsoring her son and providing financial support for him to travel to Australia to visit his sister, the review applicant and her husband, [Brother-in-law A].

   p.A copy of an Australian Citizenship certificate in the name [the review applicant] dated [in] February 2014.

   q.A letter from [Employer 1], dated 10 March 2022. They are the employers of the visa applicant. They stated they have no objection to him travelling to Australia from 19 March 2022 to 31 March 2022.

9. The visa applicant, in his statement, concerning his planned activities, stated (in summary):

   a.His sister, [the review applicant] and my brother-in-law, [Brother-in-law A] are a permanent resident in Australia.

   b.His sister and brother-in-law are having some issues in their relationship. They had an ugly fight last month on some issues which are not appropriate to share outside family. Things got out of the hands in the heat of the moment and police had to interfere to take immediate action.

   c.Both of them are good human beings, love each other a lot and have [beautiful] kids. Unfortunately, with time because of some misunderstandings differences grew between them and now it took an unpleasant turn. He believes that he can talk to them help them to solve the issues they are facing so that they don’t choose the path of divorce and ultimately ruin their relationship and jeopardize the future of their beautiful kids. [Brother-in-law A] is a dear friend of the applicant and he shares his feelings to the applicant. The applicant knows that after meeting both of them he can solve this problem. They have decided not to involve family members in this issue to avoid unnecessary drama and it can also cause health issues to the elders of the family.

   d.In fact they want him to be with them for some time. They both believe that he can help to sort their issues.

   e.Currently he is working at [Employer 1], [specified address], Haryana, India as [an occupation 1] annual salary is around INR 4,20,000 (AUD 7,528).

   f.He has a savings of INR 5,62,443.94 (AUD 10,080.80) in his bank account.

   g.The address of his sister ([the review applicant]) and brother-in-law ([Brother-in-law A]) in Australia is [specified in] WA, [Australia].

   h.He will stay at his sister’s house for the duration of his stay in Australia. Rest of the expenses e.g. Air tickets and food will be borne by him and his parents.

   i.His plan is to stay in Australia from 19/03/2022 till 31/03/2022.

10. The applicants lodged an application for review of the delegate’s decision on 15 April 2022. In support of the application for review, the review applicant provided a statement to the Tribunal. In summary, she said:

    a.She just wanted to let the Tribunal know that she and her husband applied for her brother [the visa applicant’s] ([specified address], Haryana, India) visitor visa for Australia in order to visit them. They invited him because for the last few months, their marriage life has been very much disturbed and she is going through depression. They have [number] kids, [genders and ages specified]. Currently, she is taking medicine for depression and her doctor advised her that she must call someone from her family for a company, which is the reason she wanted to invite her brother here for some time. Her mother, her aunt, and her brother, [the visa applicant], are the only three members of her family back in India. Unfortunately, her mother has been bedridden for the last 18 years and her aunt’s health is also not good. So only her brother [the visa applicant] is left from her family who can come here at this moment, and she have a strong bond with him.

    b.Even when she was pregnant the second time, her brother [the visa applicant] visited in Australia, and she was suffering from depression at that time also. Frankly speaking, when he came and spent [number] days with my them, it was the best time she had and even her son loved his company. Even her relationship with her husband got better as [Brother-in-law A] and [the visa applicant] were childhood friends and they also share a strong friendship bond. Her son, who misses his uncle so much, keeps on asking her when is she going to call [the visa applicant] here in Australia to visit them. He always questions her that his friend’s family has grandparents, uncles, and aunts, so why don’t they have any relatives here? Even while writing this, she is getting emotional as to why her brother can’t visit her for a few days in Australia. It is not her fault that she only has [number] members in her family, and two of them aren't keeping well. Her married life is also not going well, and if her brother [the visa applicant] comes here and spends some time with them, she is sure it will make a lot of difference in her state of mind and as well as relationship between her and her husband

    c.[The visa applicant] did not choose to give them a visit because he is also responsible for her mother and aunt. In terms of economic standing. She says that he is not a money-hungry individual. In comparison to money, he values relationships significantly more. Furthermore, they come from a middle-class family and are Indian citizens of the middle class. He is financially secure and leads a contented life. He has no plans to stay in Australia for a long time. Furthermore, the review applicant takes complete responsibility for ensuring that he leaves Australia before his visa expires. [The visa applicant] had previously visited them in Australia and left the country before the expiry of his visa. He abided to all the law of Australia. Also, the review applicant invited her mother and Aunt as well to visit them. They also left Australia before the expiry of their visa.

    d.The review applicants take full responsibility that he will leave Australia before the expiry of his visa.

    e.She does not understand why [the visa applicant’s] visa was refused by the embassy. The reason given was that [the visa applicant] might not return to India once he arrived in Australia. In her opinion, it is a baseless reason as [the visa applicant] has a family, job, and property in India and he is the only one who takes care of her bedridden mother in India. Secondly, [the visa applicant] visited us in 2019 as well, when a visa was granted to him for 1 month, but he only spent [number] days with them, and he had to rush back to India as he has many responsibilities in India.

    f.The condition of her family here is getting bad and even the police had to intervene once to solve their issue, but unfortunately, it didn’t work. She wants her brother here to help her face this depression and save her marriage. They understand that they have choice of take counselling, mediation or go to psychologist. But there is no doubt that if some family member will visit them. Specially the one who they trust and are comfortable with the most. It will work for them more than everything.

11. In addition, the visa applicant also provided a statement. In addition to what he stated in his prior planned activities statement, he added (in summary):

    a.He applied for his visitor visa earlier for the same reason but received refusal letter on March 17, 2022 and the main reason for refusing his application was that the Visa Officer is not satisfied about his financial conditions in India and that he does not have sufficient strong commitments in India or he does not have sufficient incentive to return to India. Another reason was that the Visa Officer couldn’t verify the employment details online that he provided to the Department in his application. He would like to address these concerns in this review application.

    b.First and foremost, he would like to mention that [Aunt A], is his mother's sister, and [the review applicant’s] mother. [Aunt A] has been living with them in the same residence. She has been ill for more than 6-7 years and is bedridden. All essential documentation verifying this statement is attached with this application. He is the only one who is physically present with her and responsible for her care. This is one of the main reasons why he does not want to spend lengthy periods of time away from home, which is why, during his previous visits to Australia, he returned home a few days before his visa expired because he had several important commitments in India.

    c.Secondly, if he talks about his net worth in India, it is INR 2,05,54,685 (AUD 362,452). He has AUD 10,374 in savings account, movable assets of AUD 25,857 and immovable assets of AUD 3,26,221. He has commercial property (shop) in his mother’s and his name, and the residential house is in the name of his mother, himself, and [Aunt A].

    d.From these facts, he hopes to demonstrate that he has enough wealth in India, and he does not need to leave his elderly mother and aunt to face their older years alone. He wishes to travel to Australia to meet his sister [the review applicant] and brother-in-law [Brother-in-law A] since their marriage is in jeopardy and family assistance is desperately needed.

    e.He is currently employed as [an occupation 1] at [Employer 1], [specified address], Haryana, India, and his annual income is approximately INR 4,20,000. (AUD 7,458). Because it is a [type] company, they don't require any online footprints, which could explain why the Visa Officer couldn't uncover much information about it.

12. The applicants also submitted to the Tribunal the following documents:

    a.Various medical reports concerning the applicant’s Aunt from 2014 to 2016 and one letter from 2022 stating the applicant’s Aunt had been receiving treatment for a back injury for the past few years.

    b.A statement from a Taxation Advisor, [named], vouching for the legitimacy of [Employer 1], dated 6 April 2022.

    c.Statements from [named] Chartered Accountants declaring the net worth of the visa applicant to be 20554685.87 Indian Rupees or approximately $362,452.58 Australian dollars.

    d.A Bank Statement from [Bank 1] in the visa applicant’s name dated 13 April 2022 declaring a closing balance of 616530.99 (approximately $11,952.81 Australian dollars).

13. On 28 June 2022, the Tribunal received an updated medical letter from [Doctor A] of [Clinic 1] re-confirming that [the review applicant] has been suffering from depression and anxiety, is taking medication, and has been referred to counselling.

14. The review applicant, at the Tribunal hearing, that she is having marital issues with her husband. She is in an inter caste marriage and her in-laws did not support her. Her husband does not understand her and he argues with her and does not understand her feelings. Her in-laws are in India they do not talk to her or her children.  She only has a brother in her family. He came for a one month visa when she was expecting her [child].  She feels very lonely and does not work because of her depression. She decided to call her brother and he came to Australia. She lives in Perth.

15. Asked when was the last time she went to India and why she is not going over to visit her family now, she said she cannot visit India as in 2015 it was a terrible time as her in-laws do not like her.

16. Her mother is bedridden from a back problem. She lives with her aunt, her mother is being cared for by her brother.  They will hire a helper for their mother and her aunt maybe can help sometimes. She is not well also.

17. Her brother is [age] years old and is not married. Her husband respects her brother.  Her brother works in [a specified industry]. He is [an occupation 1]. He has been working there for the last 2 years. Before that he was working for the [a named employer] and took holidays then. He is well established. She is ready to pay a bond for him to come to Australia. He will return.

18. The Tribunal put to the applicant that independent evidence indicates that document fraud is common in India.

19. The applicant stated that she is suffering depression and is unable to survive without seeing her family.

    REASONS AND FINDINGS

20. The issue in this review 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.

21. In the present review, the visa applicant seeks the visa for the purposes of visiting his sister. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

22. 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)). 

23. The visa applicant has visited Australia previously. He returned to India prior to his visa expiring.  The Tribunal finds that the visa applicant complied substantially with the conditions of the last substantive visa held. He meets cl 600.211(a).

24. 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.

25. The Tribunal has no evidence before it to suggest that the visa applicant will not comply with conditions to which a visa in the circumstances of this review would be subject. The visa applicant has his own finances and the review applicant attests to also supporting him whilst he is in Australia.

26. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The review applicant has depression and attests to needing to see and talk to her brother. Her mother is bedridden and the visa applicant, with her aunt, care for the review applicant’s mother. The Tribunal accepts that the review applicant does not wish to return to India as there are problems with her husband’s family and she is experiencing marital issues.  As the review applicant’s mother is bedridden and her aunt is also not in a position medically to care for her mother, whilst the visa applicant visits Australia it is proposed to hire a carer to assist them.

1. The Tribunal accepts that the visa applicant has an incentive to return to India at the conclusion of his visit.

2. 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

3. 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.

   Lilly Mojsin
   Member