Bawa (Migration)

[2021] AATA 3769

Bawa (Migration) [2021] AATA 3769 (21 September 2021)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Manmir Singh Bawa

VISA APPLICANT:  Mrs Jasmeet Kaur Gandhi

CASE NUMBER:  1926442

HOME AFFAIRS REFERENCE(S):          BCC2019/4350074

MEMBER:Stephen Witts

DATE:21 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 21 September 2021 at 1:30pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – visitor stream – visa applicant’s husband is still pursuing a permanent visa - strong personal ties to Australia – genuine temporary stay criterion – immigration history of the visa applicant’s family ––decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, 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 Home Affairs on 18 September 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 31 August 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 intends to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant Mr Manmir Bawa appeared before the Tribunal on 21 September 2021 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant Mrs Jasmeet Gandhi and the review applicant’s wife Mrs Sally Bawa.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

11. 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)). The Tribunal notes that there is no evidence before it of a breach of any substantive visa conditions by either applicant.

12. According to the delegate’s decision record dated 18 September 2019 provided to the Tribunal by the applicants the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

13. According to the delegate it considered the personal circumstances that would encourage the visa applicant to return to her home country at the end of the proposed visit and also the personal circumstances and the general conditions of life in the applicant’s home country of India that might encourage her to remain in Australia. According to the delegate it considered that the applicant was intending to visit her brother and spouse in Australia noting that the visa applicant had stated that she works as a chemist but was nevertheless not satisfied that the visa applicant’s employment would constitute a strong incentive for her to return to her home country of India. According to the delegate it also was not satisfied that the applicant had demonstrated sufficiently strong family, employment or financial or other ties that would serve as an incentive for the visa applicant to return to her home country.

14. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at hearing. In particular the Tribunal has considered financial information from the visa applicant’s home country including fixed deposit accounts, life insurance policies, property in the review applicant’s name, property information and cash holdings in Australia in the review applicant’s name and other financial information. The Tribunal has also considered a submission in the form of a statutory declaration by the review applicant dated 27 September 2017.

15. The Tribunal also notes a family visa and travel history provided by the review applicant, the visa applicant’s brother, referring to his mother’s two visits to Australia, his mother-in-law’s visits to Australia, and his sister’s visits to Australia. It was also noted that the review applicant’s wife has applied for Australian permanent residency, that he is an Australian citizen and that he has two children who are also Australian citizens.

16. At the hearing the Tribunal had a discussion with the visa applicant regarding her application. The visa applicant stated that she has her brother, the review applicant, here in Australia with his family and that she also has her husband here in Australia and that they were first married in January 2011 and they have one child, a daughter, Fiona, who was born in 2012.

17. She stated that she had made several visitor visa applications to come to Australia before but could not remember how many but that she was successful in being granted a visitor visa in 2013 and that she came to Australia to visit her husband for her daughter’s birthday in that year. She stated that she has no other visa applications pending and that her husband has been refused a permanent visa to Australia by the Department and that he had appealed that decision to the AAT which was affirmed, but had then been remitted back to the Tribunal by the Federal Circuit Court and that a review into the matter was pending. She stated that therefore her husband was on a bridging visa in Australia. She subsequently stated that there had been a hearing in regard to this matter before the Tribunal but that they were waiting for a decision in regard to her husband’s visa status.

18. She stated that she was living in her home country of India with her mother-in-law and her daughter, that she is not employed, and that she has a sister in India, but that her parents have passed away. She stated that her husband was not appearing in this matter today. She stated that he first arrived in Australia in 2005 on a student visa.

19. She stated that she has firm ties to India and that she has her mother-in-law and sister in her home country, that she loves her brother and sister in law in Australia and that she would like to spend time with them but that she has a firm commitment to residing in India and that her daughter is studying there and that she will if given a visitor visa come to Australia and spend time with the family as a genuine visitor and then return home.

20. The review applicant, the visitor applicant’s brother, stated that he first came to Australia in 2009 on a student visa and became an Australian citizen in 2019. He stated that he lives here in Australia with his wife and two children aged seven and four years old and that he also has some cousins who have children who also live in Australia. He stated that his wife, Sally, is pursuing a permanent visa at this time and that she first arrived in Australia on a subclass 100 visa. He stated that he is an administration worker but is seeking to work as a registered migration agent. He stated that he has made seven or eight visitor visa applications before for his sister to visit the family in Australia but that only one was successful. He stated that she did not breach the one visitor visa that she was granted in 2013 and that he would provide a security bond to ensure that she returned home. He stated that there is still another visitor visa application pending at this time.

21. The Tribunal has considered the evidence of the applicants very carefully and notes that they have stated that the visa applicant will come to Australia as a genuine visitor and then return home. The visa applicant referred to ties that she has in India including a mother-in-law and a sister. The Tribunal also notes however that the visa applicant has a spouse here in Australia and that they have a daughter, and that she has a brother and his family here in Australia.

22. The Tribunal notes that it would appear that the visa applicant did not breach her visitor visa conditions in 2013 but is concerned that now that eight years have passed and that the family have not been successful in pursuing permanent residency in Australia for the visa applicant’s husband. It is noted in that context that the visa applicant’s husband, who did not appear at the hearing, is still pursuing a permanent visa

23. in some capacity and that these ongoing changing circumstances further indicate that her past behaviour in 2013 of not breaching a visitor visa is not necessarily indicative now of what may occur eight years later should she be successful in obtaining another visitor visa.

24. The Tribunal has considered this evidence carefully and is concerned that the applicants did not provide a coherent or credible narrative that satisfied the Tribunal that they were genuine in their protestations that the visa applicant simply wants to visit her brother and family in Australia for three months. Both parties referred to the struggles that the visa applicant and her husband have had over many years to obtain a permanent visa to allow  her husband to remain in Australia and that this pressure has been building up for several years, and finds that this lends weight to the contention that the visa applicant does not genuinely intend a temporary visit to Australia.

25. The Tribunal has considered the evidence by the applicants very carefully as stated above and did not find the visa applicants evidence that she just wants to visit her brother here in Australia for a few weeks to be credible. The Tribunal has specifically considered as above that although the applicant did not breach her visa conditions in 2013 that nevertheless her personal circumstances have changed significantly over the last eight years due to the prolonged nature of the visa applicants husband’s applications to become a permanent resident and that this lends weight to the contention that the visa applicant does not genuinely intend to stay in Australia temporarily for the purpose for which the visa is granted.

26. The Tribunal has also considered the incentives that the visa applicant may have to return to her home country and finds that the personal incentives that the visa applicant may have to return to India, that is her life back there with her mother-in-law and sister is outweighed by the personal incentive that she would have once in Australia with her husband and family to seek to develop a plan to stay here with her family permanently. The Tribunal notes also that financial evidence has been provided specifically in regard to cash holdings in India in the visa applicant’s name but finds that such holdings can be held in trust in India or at some point be transferred to Australia should the applicants be successful in remaining here permanently. The Tribunal also notes that the applicant does not have employment back in her home country and that her parents have passed away and that these matters also may indicate that the applicant lacks an incentive to return home to her home country and finds that this also lends weight to the contention that the applicant does not genuinely intend to visit Australia temporarily.

27. The Tribunal therefore finds that these factors taken as a whole lend weight to the contention that the applicant does lack a personal incentive to return home to her home country. The Tribunal also notes that should the visa applicant’s daughter remain in India with family that nevertheless once here in Australia with her husband that the visa applicant might seek to stay here permanently and then to seek to bring her daughter out here to Australia.

28. Accordingly, the Tribunal is not satisfied that the visa applicant may seek to change her status on shore, given the benefit she would derive. The above-mentioned factors indicate that she may seek to change her status on shore and/or remain in Australia and that the visa applicant does not genuinely intend to stay temporarily in Australia.

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

30. 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

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

    Stephen Witts
    Member