BANGER (Migration)

[2018] AATA 205

BANGER (Migration) [2018] AATA 205 (9 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms REKHA BANGER

VISA APPLICANTS:  Mr LOVEDEEP
Mrs ANJU
Master RYAN BANGER

CASE NUMBER:  1711167

DIBP REFERENCE(S):  BCC2017/870524

MEMBER:Tania Flood

DATE:9 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 February 2018 at 2:53pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – First and second named applicant’s extended stay – Previously altered visa status – Mother’s valid visitor visa – Occupations

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

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 29 March 2017 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 3 March 2017. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 visas were refused on the basis that the visa applicants did not meet cl.600.211 because the Delegate was not satisfied that they genuinely intend to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 6 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the first named visa applicant overseas.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   BACKGROUND

8. The review applicant is one of three siblings residing in Australia.  Her remaining sibling is the first named visa applicant and he lives in India.

9. The first named visa applicant is married with one child (second and third named applicants).  His mother is a widow and remains in India.  He runs his own taxi business.

10. The first and second named applicants previously applied for student visas which were refused.  None of the visa applicants have visited Australia.

11. In a submission to the Tribunal the review applicant states:

12. Her mother has visited Australia twice and returned to India.

13. Her brother has a stable income working as a Taxi Driver.

14. Since the death of their father the first named visa applicant is the only child remaining in India and he is responsible for the care of their mother and their ancestral property.

15. The visa applicants do not belong to any political or religious groups and have no fear of returning to India.

16. Her brother applied for a student visa in 2009 and was refused.  Her sister-in-law applied for a student visa in 2013 and was refused. 

17. She and her husband are financially secure; they are employed full-time and have sufficient savings to support the visit of her relatives.

18. In an affidavit signed 1 February 2018 the visa applicants state:

19. Their mother and extended families are all living in India.  The first named applicant is responsible for caring for his mother now that their father is deceased.

20. The first named visa applicant’s student visa application was refused in 2009.  At the time all student visa applications were declined.

21. When the second named applicant applied for a student visa in 2013 it was refused.  They did not know what documents their agent gave the embassy so were not aware an incorrect tax record was provided.  Their marriage is genuine.

22. They are financially well off and have sufficient funds to support their stay in Australia. 

23. They will not jeopardise the future visits of other relatives by overstaying their visas. 

24. The second named visa applicant’s entire family is in India.

25. They have never had any issue with the law in India and do not belong to any political parties or religious groups.

    TRIBUNAL HEARING

26. In addition to the above information, the review and visa applicants provided the following testimony to the Tribunal:

27. The review applicant lives with her husband and 15 month old daughter.  She has worked in the one position for Vodafone for thirteen years.  Her husband came to Australia one and a half years ago and commenced work as a machine operator in October 2017.

28. The review and visa applicants have two other siblings who are also Australian citizens.  They both came to Australia on student visas and were subsequently granted permanent visas.

29. The review and visa applicant’s mother was widowed in 2014.  She visited Australia for three months in 2015 and returned again in 2017 and stayed for seven months.  She currently has a three year visa which was issued in 2017.

30. When in India the review and visa applicant’s mother resides with the visa applicant and his family.  She is aged 58.  She does not work and is financially supported by her children.

31. The first named visa applicant works as a Taxi Driver and his wife does tutoring and dress designing while she cares for their baby.

32. Neither the review nor first named visa applicant could adequately explain the reasons for the refusal of his student visa request in 2009. They simply stated that at the time of his application many such requests were being refused. The review applicant is unaware of the details of the false information provided along with her sister-in-laws application for a student visa in 2013.  The first named visa applicant confirmed that false tax records were provided by their agent without their knowledge. 

33. The review applicant visited India in 2016.

34. The visa applicants would like to visit the family in Australia and spend time with and get to know their siblings children.  They would like to visit Australia for between 3 and 6 weeks. 

35. If only the first named visa applicant is granted a visa he would still wish to travel to Australia because all three siblings have not been together at the same time for fourteen years.

36. The visa applicants are Hindu and are not involved with any political groups in India.

37. The visa applicants will return to India at the end of their visa because the second named visa applicants entire family are there and the first named visa applicant is responsible for caring for his mother as the only remaining sibling in India.  If he is not there the family ancestral property will be given away to the aunts and uncles.  Since the death of his father the responsibility of the household rests with him.

    POST HEARING SUBMISSION

38. Following the hearing the review applicant wrote to the Tribunal attaching a copy of the visa grant notification for her mother which is dated 1 June 2017.  This shows that the visa applicant’s mother was issued a further twelve month Visitor visa with the last date of arrival being 1 June 2020.

39. She further stated:

40. She assures the Tribunal her brother and his family will not overstay their visa.

41. Even though they applied for student visas in the past they no longer have that wish to study in Australia and they only want to come for a visit.

42. Her sister and brother lawfully applied to alter the immigration status in Australia as do many other people who come to Australia on student visas.

43. She is happy to pay a bond to secure the visas for her family.

44. Even if the whole family are granted visas they will return to India because their mother needs their care and support in India.

    CONSIDERATION OF CLAIMS AND EVIDENCE

45. 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.

46. In the present case, the visa applicants seek the visas for the purposes of visiting family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

47. 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)).

48. The review applicant first arrived in Australia on 20 February 2005 as the holder of a Partner Provisional visa.  On 22 December 2006 she was granted a Partner visa.  On 22 June 2010 she was granted Australian citizenship.

49. The review applicant’s sister first arrived in Australia on 29 May 2008 as the holder of a Higher Education Sector visa.  On 12 April 2010 and 17 November 2011 she was granted a Vocational Education and Training Sector visa.  She obtained Australian citizenship on 19 May 2014.

50. The review applicant’s brother first arrived in Australia on 14 January 2007 as the holder of a Higher Education Sector visa.  On 23 July 2008 and 15 June 2009 he was granted Vocational Education and Training Sector visas.  On 5 November 2012 he was granted a Skilled Independent visa.  On 19 May 2014 he became an Australian citizen.

51. While the Tribunal was unable to locate a movement record for the review applicant’s mother it accepts she has visited Australia twice as the holder of a Visitor visa in 2015 and 2017.  Based on the available evidence she is currently entitled to return to Australia on her current Visitor visa. 

52. 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.

53. For the following reasons, the Tribunal is not satisfied the visa applicants will comply with condition 8531 or that they genuinely intend to visit Australia temporarily.

54. The Tribunal has placed weight on the fact the first and second named visa applicants both applied for student visas in the past in order to come to Australia for a lengthy stay.  In the case of the most recent application in 2013 the second named visa applicant applied for the student visa including the first named visa applicant as her dependent which reinforces the Tribunal’s view that their intention was to spend an extended stay in Australia.  At the hearing the Tribunal put it to the review and visa applicants that it appears the visa applicants had an intention to visit Australia for a lengthy period of time in 2013 and enquired why just four years later they are now content to visit Australia for a few weeks and then return to India.  The first named visa applicant stated that since then his father has passed away and he is responsible for caring for their mother. 

55. The Tribunal accepts that the review and first named visa applicant’s mother is now widowed but has placed weight on the evidence that her mother currently holds a valid Visitor visa which will allow her to return to Australia.  Therefore the Tribunal is not persuaded that the presence of the first named visa applicant’s mother in India provides a strong incentive for him to return at the end of his visa.

56. The Tribunal also notes and finds it significant that two of the first named visa applicants siblings came to Australia on student visas and subsequently altered their visa status and have remained permanently in Australia.  While the Tribunal notes and accepts the submission that they have acted lawfully it nevertheless finds this pattern of behaviour indicative of a willingness and desire on the part of the family for them to be united in Australia.

57. In addition to the above, the Tribunal also finds it problematic that false information was provided to the Australian Embassy in connection with the second named visa applicant’s application for a student visa in 2013.  The Tribunal acknowledges their claim that they were unaware that their agent had provided a false tax record until after the visa was refused but as discussed at hearing persons who sign documents in connection with visa applications do so on the acknowledgement that the information contained therein is true.  In the circumstances, the Tribunal is of the view that this reflects poorly on the visa applicants’ credibility and casts some doubt on whether they genuinely intend to visit Australia temporarily.

58. The Tribunal has considered the fact that the three visa applicants have applied to travel to Australia together.  The Tribunal acknowledges that the review and first named visa applicant indicated at hearing that the first named visa applicant would still wish to travel to Australia if it transpired that only he was able to secure a visa.  However, the Tribunal has placed more weight on the fact that the majority of his close family members are now residing in Australia and his only immediate relative in India, his mother, has spent ten months in Australia since 2015 and currently has the right to return to Australia on her existing Visitor visa.  Should that happen the first named visa applicants’ entire immediate family will be in Australia and the Tribunal considers he would have little incentive to return to India in the circumstances.  The Tribunal has considered whether the granting of the visa to only the first named visa applicant would mitigate against such an occurrence but for all the reasons outlined in this decision it is not satisfied it will. 

59. The Tribunal acknowledges the visa applicants claims that they are financially secure in India but is not persuaded that their respective occupations, taxi driver and tutor/dress designer, provide a strong incentive for them to return to India.

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

61. For all the above reasons the Tribunal is not satisfied that the visa applicants genuinely intend 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

62. The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

    Tania Flood
    Member