Challa (Migration)

[2021] AATA 2479

Challa (Migration) [2021] AATA 2479 (2 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Challa

CASE NUMBER:  1906418

HOME AFFAIRS REFERENCE(S):          BCC2019/34792

MEMBER:K. Chapman

DATE:2 July 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 02 July 2021 at 1:16pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – factor beyond applicant’s control – problems with internet banking prevented applying for visa on last day previous visa valid – genuine temporary entrant – long periods without travelling – waiting for friends to complete studies – told by friends that he could not move address while waiting for review hearing, and thought he would have to attend hearing in person – COVID-19 travel restrictions – limited incentives to return to home country – undetailed plans for study and work – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.223(2)(b), Schedule 3, criterion 3004(a)

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 27 February 2019 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant, Mr Sandeep Challa, applied for the visa on 4 February 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’). The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.223(2)(b), because he was assessed as not satisfying the requirements of criterion 3004. On 18 March 2019, the applicant applied to the Tribunal for review of the visa refusal decision. He also submitted a copy of the delegate’s decision to the Tribunal and a screen shot of his banking website. The applicant subsequently submitted a written statement, a bank statement and confirmation of his change of address.

4. Relevantly to this case, the criteria for the Subclass 600 visa also include cl.600.211, which requires the applicant to satisfy the Minister that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. On 21 April 2021, the Tribunal wrote to the applicant, pursuant to s.359A of the Act, inviting him to provide comments on, or response to, the following information:

   a.“Departmental systems indicate that you arrived in Australia on 14 September 2016 holding a Subclass 500 Student visa. On 11 October 2018 you were then granted a Subclass 600 Visitor visa onshore valid until 11 January 2019. On 12 January 2019 you made an invalid application for another Subclass 600 Visitor visa. On 4 February 2019 you made the application for the Subclass 600 Visitor visa the subject of your review application. You have held a Bridging Visa E since 30 January 2019. You have not departed Australia since your first arrival on 14 September 2016.”

6. The Tribunal’s correspondence advised that the above information is relevant to the review, as it tends to suggest that the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the Subclass 600 visa is granted. This correspondence also outlined that if the Tribunal relies upon the information it may affirm the decision under review as the applicant would not meet the requirements of cl.600.211.

7. On 4 May 2021, the applicant responded by lodging a statement contending that he was prevented from applying for the second Subclass 600 visa on time due to problems with his internet banking. Further, the applicant advised that he is a genuine visitor and has not been able to visit all of the places in Australia he would like. According to the applicant, when granted the initial Subclass 600 visa onshore he could not travel due to waiting for his friends’ examinations to conclude. Following this, according to the applicant, he was refused a second Subclass 600 visa, he was waiting for his Tribunal hearing, then the COVID-19 pandemic prevented further travel. The applicant claims his family is in the United States now and they plan to return to India. He asserts that he will return to India when his family does to resume involvement in the family business, but it is dangerous to do so now due to the impact of the COVID-19 pandemic in that country. The Tribunal has carefully considered this response.

8. The applicant appeared by telephone before the Tribunal on 27 May 2021 to give evidence and present arguments. He confirmed that he was comfortable participating in the hearing by telephone. The applicant also confirmed he was the only person providing evidence at the review hearing.

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

   ISSUES

10. The Tribunal notes that the delegate considered whether the applicant satisfied criterion 3004 for the purposes of cl.600.223. As this is a review de novo, and the applicant seeks the Subclass 600 visa in the Tourist stream, the Tribunal raised with him, in the invitation issued pursuant to s.359A of the Act, that cl.600.211 is relevant to the present review. Furthermore, the Tribunal canvassed both cl.600.211 and cl.600.223 with the applicant during the review hearing. Accordingly, the Tribunal is satisfied that the applicant was fairly placed on notice that both cl.600.211 and cl.600.223 are relevant to this review and it makes findings regarding both.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence of the applicant at the review hearing

11. The applicant gave evidence to the Tribunal at hearing which may be summarised as follows. He arrived in Australia in 2016 to study and has not departed since. On 11 January 2019, he attempted to apply for a second Subclass 600 Visitor visa onshore, however he realised that this application was more expensive than the last, so he needed to transfer funds from another bank account. According to the applicant, his online banking was experiencing technical difficulties so he could not make the transfer until after midnight (submitting an undated screen shot of his online banking system with an error message). As the applicant’s Subclass 600 visa had expired at midnight, he was ineligible to apply online for a new visa. On 4 February 2019, the applicant was able to apply for a new Subclass 600 visa. He sought a Bridging Visa E so as to remain lawfully in Australia and maintained that it was not his fault there was a delay in him applying for the second Subclass 600 visa onshore.

12. When asked by the Tribunal of his activities in Australia post 4 February 2019, the applicant advised that he has been waiting for his review hearing. He added that he was told by friends that he could not move address while he waited for his hearing and therefore he did not visit any places in Australia whilst waiting, and also he thought he would need to attend a hearing in person. When the Tribunal enquired further of his activities since 4 February 2019, the applicant advised that in 2019 he went to Rockhampton for one month and to Cairns for three months. According to the applicant, he maintained his residential address in Brisbane due to his review application, claiming the rent was only $70 per week in a share house so he could afford it. The applicant agreed that the COVID-19 pandemic did not affect Australia until March 2020.

13. When asked by the Tribunal how he has financially supported himself in Australia, the applicant replied that his mother transfers money to him via Western Union, as she is running their family business in India remotely from the United States. When asked by the Tribunal the purpose of his proposed extension of stay in Australia, the applicant indicated that he wishes to visit Darwin, Ayres Rock, Melbourne and Perth as he is making a blog on ‘You Tube’. He added that he has been to Sydney, but not to other States in Australia. The applicant contended that he wants to remain in Australia for a further six months only and then he will return to India.

14. The applicant explained that his family operates a business in India focused on construction, farming and import/export. He informed the Tribunal that his brother resides in the United States as a ‘Green Card’ holder and his mother is still in that country also due to the COVID-19 pandemic. The applicant maintained he needs to return to India to help manage the family business. When asked by the Tribunal how the business is being managed in the absence of himself, mother and brother, the applicant advised that managers in India have been looking after the business for the last seven months since his brother and mother went to California. The applicant maintained that he will return to India in six months’ time and hopefully COVID-19 would have decreased in his homeland by then. The applicant advised the Tribunal that his father passed away in 2013, with his mother and brother in California being his remaining immediate family members. The applicant confirmed he has no relatives in Australia.

15. When asked by the Tribunal to outline his financial position, the applicant advised that he has a house and land for poultry farming in India. The house is looked after by his friends. His proposed extended stay in Australia will be funded by money transfers from his mother or brother according to the applicant. He maintained that he does not work in Australia. The applicant also confirmed he has had no other visas refused.

16. The Tribunal invited the applicant to expand upon his pre-hearing response to the s.359A information if he wished to do so. He added that he applied for a Bridging Visa E so he was not in Australia illegally. The Tribunal raised with the applicant that in his Subclass 600 visa application he requested a stay of 12 months until 15 January 2020, however he has remained in Australia until the present time, which might tend to suggest that he does not genuinely intend to stay temporarily in Australia for the purpose for which the Subclass 600 visa is granted. The applicant was invited to comment and responded that his first Visitor visa was granted for only three months and also that he has only been to Sydney. He applied for a twelve month visa to visit other places in Australia. Apparently, when he applied to the Tribunal for review, he thought he must come in person and that is why he remained in Queensland. The applicant added that he didn’t know the COVID-19 pandemic would come and that he would be granted a telephone hearing. Therefore, according to him, he and his friends didn’t get the chance to visit the places they wanted to.

17. When asked by the Tribunal why he did not travel from 4 February 2019 until 15 January 2020 (the stay period requested in the visa application), which appeared to be sufficient time prior to COVID-19 to conduct tourism and which might tend to suggest he does not genuinely intend to stay temporarily in Australia for the purpose for which the Subclass 600 visa is granted, the applicant responded that he didn’t travel because he thought he had to attend a review hearing in person. When asked by the Tribunal why he did not think to advise it that he would travel around Australia, the applicant maintained that he thought he must remain in Queensland until his hearing was conducted.

18. The Tribunal raised with the applicant that given he has a family business which is run remotely in his absence by his mother, brother and managers; he has no study commitments in India, he is financially reliant upon his mother, he has been in Australia continuously for a significant period of time, and he requested a stay in this country until 15 January 2020 which is prior to the COVID-19 pandemic affecting Australia but he has remained, these matters might tend to suggest that he does not genuinely intend to stay temporarily in Australia for the purpose for which the Visitor visa is granted. The applicant was invited to comment and replied that he is financially reliant upon his mother and plans to return to India to take over the family business, therefore he has no reason to stay longer in Australia once his tourism is completed. The applicant then added that he planned to undertake Masters’ studies in construction in India, ultimately conceding that he has not taken any concrete steps yet regarding these proposed studies and noting he needs three years’ work experience and to pass an examination in order to be eligible to undertake them.

19. The Tribunal raised with the applicant that he contends he could not apply for a Subclass 600 visa prior to the expiry of his earlier Subclass 600 visa due to factors beyond his control, citing an issue with internet banking on the day before his last substantive visa expired. Further, the Tribunal indicated it might have difficulty being satisfied that he no longer held a substantive visa then due to factors beyond his control, as it appears he left it until very shortly before his visa expired to apply for a new one, and also that he has held multiple Australian visas which suggests some familiarity with the visa system. The applicant was invited to comment and replied that on the day his Visitor visa was expiring he was returning to Brisbane from Sydney, so he didn’t have time to apply until the evening. He advised that he thought the visa cost was $300, however it was actually $1,400, so he went to transfer funds from another bank account into his transaction account. He contended that the internet banking application didn’t work then and only began working at midnight. The applicant maintained he was only two minutes late to apply for the new Visitor visa before his old one expired at midnight.

20. The Tribunal canvassed with the applicant why he had to leave his visa application until the last day of validity of his earlier Visitor visa. The applicant then responded that he was in Sydney earlier with friends and they decided to extend their stay to visit the Blue Mountains and other places. He worried that he would not have mobile phone reception at remote places, so he never tried to apply for the visa whilst he was in New South Wales. Thereafter, the Tribunal asked the applicant about his movements and accommodation whilst in New South Wales at that time. The Tribunal considers the applicant to have been evasive in the nature by which he provided vague responses such as trekking in forests and seeing waterfalls. In due course, the applicant advised the Tribunal that he was mostly in the city of Sydney on this trip and that he never stayed overnight other than in premises with electricity.

21. The Tribunal raised with the applicant that the submitted screen shot of the banking application is undated and this might cast doubt on the date he has described. The applicant was invited to comment and responded that he was texting a friend at the time and realised the banking application was not working. He added that it worked at midnight and he also accepted there is no date on the screen shot.

22. The Tribunal raised with the applicant that given he was always staying in a dwelling in New South Wales with electricity at that time and there is no date on the bank screen shot, this might tend to suggest that it was not the case he was not the holder of a substantive visa because of factors beyond his control, inviting his comment. The applicant responded that he had another friend who applied for a Visitor visa on the last day of expiry of his visa and that is why he left it to this point. The Tribunal raised with the applicant that following his friends’ example might not tend to suggest there were factors beyond his control at that time, inviting his comment. The applicant agreed he should have applied earlier, adding that he could not see on the Department’s website that extra funds were required for the new visa, therefore he didn’t know and would have immediately paid if he did.

23. The Tribunal raised with the applicant that given he had already been in Australia for a significant time when he last held a substantive visa on 11 January 2019, which was before the COVID-19 pandemic, this might tend to suggest that he did not genuinely intend to stay temporarily in Australia for the purpose for which the Subclass 600 visa is granted at that time and therefore he would not have been able to satisfy the criteria for this visa then. The applicant was invited to comment and replied that his first Visitor visa was only granted for three months and he didn’t have adequate time to plan and travel then. He added that he was waiting for his friends’ study to finish so they could conduct more travel together.

24. When asked by the Tribunal if there are any compelling reasons for him being granted the Subclass 600 visa, the applicant initially advised that there are no compelling reasons for this. He then added that he was stuck in the COVID-19 pandemic and didn’t know that he was not going to visit the Tribunal in person for his review hearing. He doggedly maintained that he has not had the chance to visit the places in Australia that he wished, as he was stuck in Queensland during the pandemic. The applicant stated that if he is granted the visa, he will advise the Department of his location and maintained that he is a genuine temporary entrant for tourism purposes.

25. The applicant confirmed that he had no further evidence to provide at the conclusion of the review hearing.

    Does the applicant genuinely intend to stay temporarily in Australia for the purpose for which the Subclass 600 visa is granted?

26. Clause 600.211 requires the Tribunal to be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether he has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by him was subject; whether he intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

27. In the present case, the applicant seeks the visa for the purposes of remaining in Australia to engage in tourism. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221.

28. In considering whether the applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent Bridging Visa (cl.600.211(a)). It is apparent that the last substantive visa held by the applicant was a Subclass 600 Visitor visa granted on 11 October 2018 and ceasing on 11 January 2019. There is no evidence before the Tribunal to indicate the applicant has not complied substantially with the conditions attached to the aforementioned visa, or to subsequent Bridging Visas, and the Tribunal finds accordingly. This is a matter that weighs in favour of the grant of the Subclass 600 visa to him.

29. The Tribunal must also consider whether the 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):

    ·8101 – must not work in Australia; and

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

30. Discretionary visa conditions may also be imposed, however, given the delegate did not refer to these in the primary decision the Tribunal proceeds upon the basis they would not have been. On balance, the Tribunal is satisfied that the applicant would comply with the above visa conditions given his personal circumstances and the financial support of his mother. This is a matter that weighs in favour of the grant of the Subclass 600 visa to him.

1. The Tribunal has also considered all other relevant matters as required by cl.600.211(c). The personal circumstances of the applicant suggest there are limited incentives for him to return to India in the foreseeable future. His family business is run remotely by others and does not require his presence in India. The applicant’s property in India is looked after by his friends. He has no firm study commitments in his homeland. The applicant’s immediate family members (mother and brother) are located in the United States and it is unclear when they will return to India. According to the applicant, he is financially maintained by his mother with remote deposits of funds derived from their remotely run family business.

2. Further, the Tribunal does not accept that the applicant was prevented from travelling in Australia during the period 11 October 2018 and March 2020, as the holder of an initial Subclass 600 Visitor visa then subsequent Bridging Visas. That the applicant chose not to travel widely during the validity of his initial Subclass 600 Visitor visa points to him not genuinely intending to stay temporarily in Australia for the purpose of tourism. Instead, on his account, he remained in Brisbane whilst his friends completed their studies. Additionally, the Tribunal does not accept that the applicant was prevented from travelling after his review application was lodged, given in 2019 he went to Rockhampton for one month then to Cairns for three months. In particular, the applicant’s willingness to reside in Cairns at that time, for an extended period, demonstrates he was prepared to leave Brisbane and casts doubt upon his contention that he could not undertake tourism whilst waiting for his review hearing.

3. Whilst the Tribunal accepts that travel within Australia was significantly constrained from March 2020 due to the impact of the COVID-19 pandemic, it is of the view that the applicant was not in this country up until that time as a genuine entrant for temporary stay given the length of time he had been onshore to that point. It is worth pausing to reflect that the applicant had approximately sixteen months after the grant of an initial Subclass 600 Visitor visa in which to undertake travel prior to the major impact of COVID-19 in Australia from March 2020. The Tribunal also notes that it has been possible for the applicant to travel from Queensland to other States at various points in time since the commencement of the COVID-19 pandemic in Australia, but he has not done so. The Tribunal is of the view that the applicant has remained in Australia holding temporary visas since first entry on 14 September 2016, a period of more than four and a half years, and he has had a fair opportunity to conduct tourism if he genuinely wished to do so.

4. On balance, the Tribunal finds that the personal circumstances of the applicant outlined above weigh strongly against the grant of the Subclass 600 visa to him. These other relevant matters outweigh those factors in favour of granting the visa to the applicant.

5. Therefore, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and it finds that the requirements of cl.600.211 are not met.

6. For completeness, the Tribunal notes that it is open to the applicant to make contact with the Department to seek a Bridging Visa to remain in Australia until it is possible for him to return to India.

   Does the applicant satisfy criterion 3004?

7. At the time of application for the Subclass 600 visa, the applicant did not hold a substantive visa. As is relevant to the present review, the applicant must satisfy the requirements of cl.600.223(2)(b). This sub-clause provides:

   (2)If the applicant was in Australia at the time of application, and did not hold a substantive visa:

   (a)the last substantive visa the applicant held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; and

   (b)      the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

8. As is relevant, a ‘substantive visa’ means a visa other than a Bridging Visa, a criminal justice visa or an enforcement visa. For reasons not requiring further elaboration, it is not in dispute that the applicant satisfies criterion 3001 and that criteria 3003 and 3005 are not relevant to this review. However, criterion 3004 is relevant to this review, given that the applicant did not hold a substantive visa when he applied for the Subclass 600 visa on 4 February 2019. Criterion 3004 provides: 

   (a)   the applicant is not the holder of a substantive visa because of factors beyond his or her control; and

   (b)   there are compelling reasons for granting the visa; and

   (c)   the applicant has complied substantially with the conditions applicable to the last of any entry permits and subsequent bridging visa or the last of any substantive visa and bridging visa held by the applicant; and

   (d)   the applicant would have been able to satisfy the criteria or be granted the visa on the day he or she last held a substantive or criminal justice visa or last entered Australia unlawfully; and

   (e)   that the applicant intends to comply with any conditions of the visa; and

   (f)    the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

9. The Tribunal does not accept that the applicant was not the holder of a substantive visa because of factors beyond his control when he applied for the Subclass 600 visa on 4 February 2019. This is because the applicant chose to travel to Sydney and then extend his stay in the period leading up to the expiry of his initial Subclass 600 visa. He also confirmed that he was mostly in Sydney during that trip and always stayed in accommodation with electricity. Therefore, the Tribunal does not accept that the applicant was in remote locations of New South Wales, which prevented him having internet access in order to make an online application for a new Visitor visa, during that period. Further, in the view of the Tribunal, the applicant chose to follow the example of his friend who applied for a new Visitor visa shortly before his own visa expired. Such choice made by the applicant cannot amount to factors beyond his control.

10. The Tribunal is prepared to accept that the applicant could not access internet banking on the evening of 11 January 2019, even though the submitted screen shot of his banking system is undated. However, it does not accept that he was not the holder of a substantive visa because of factors beyond his control when he applied for the Subclass 600 visa on 4 February 2019, given that he had ample time prior to 11 January 2019 to transfer funds between bank accounts as required and to make the necessary visa application.

11. Therefore, the Tribunal finds that cl.3004(a) is not satisfied by the applicant. It follows that the applicant does not satisfy criterion 3004 for the purpose of cl.600.223(2)(b).

12. As the applicant does not satisfy cl.600.211 and cl.600.223 the decision under review will be affirmed.

    DECISION

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

    K. Chapman
    Member