Chopra (Migration)

[2022] AATA 455

Chopra (Migration) [2022] AATA 455 (19 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sumit Chopra

VISA APPLICANT:  Mr Mahesh Kumar Chopra

CASE NUMBER:  2002809

HOME AFFAIRS REFERENCE(S):          BCC2019/6160717

MEMBER:Jennifer Cripps Watts

DATE:19 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 19 February 2022 at 2:30pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant family visits – previous visa applications – employer references – potential for engaging in study or work – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221; Schedule 8, Condition 8101

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 6 December 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 offshore for the visa on 21 November 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 Minister refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because they were not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted.

5. On 13 February 2020, the applicant applied for merits review and provided the Tribunal with a copy of the primary decision record.

6. The review applicant appeared before the Tribunal on 8 December 2021 to give evidence and present arguments.  The Tribunal also received oral evidence from the visa applicant, Mahesh Kumar Chopra.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The review applicant was represented in relation to the review by his registered migration agent.

8. The Tribunal held the hearing by phone, considered to be appropriate in circumstances where review was of the same substantive issue on which the visa was refused.  The Tribunal is satisfied that all who were present at the hearing could be heard and understood clearly.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother, who is an Australian citizen.  This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221(a).

12. 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, conditions that would apply to the visa and any other relevant matters (cl 600.211(a)-(c)).

13. The visa applicant has not previously been granted and held an Australian visa and therefore has not been onshore and subject to any visa conditions.  For this reason, the consideration relating to previous compliance with visa conditions is not applicable.

14. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject, under Schedule 8 to the Regulations, in this case:

    ·Condition 8101 – must not work in Australia

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

15. On 21 November 2019, the applicant lodged his visitor visa application, as did his wife, who included their young child in her application.  They were intending to travel together to Australia to spend time with the applicant’s brother and his family.  The review and visa applicant’s parents were also in Australia at the time, staying with the review applicant.  They are citizens of India and have remained in Australia on visitor visas that were extended to October 2022.  The visas of the applicant, his wife and child were refused on the same day.  The applicant’s wife did not apply to the Tribunal of the decision to refuse her visa.

16. Both the review and visa applicants gave oral evidence about previous visa refusals.  The visa applicant gave evidence that he was refused a visitor visa in 2011; got married in 2012 and, in 2014 or 2015, his wife applied for a student visa and included him the application as a dependent member of her family unit.  The student visas were refused in 2016 because it was not declared in the application that the visa applicant (in the current matter) had previously been refused a visitor visa.  The visa applicant was asked about his wife’s intended study when she made the application, and any study she had done subsequently.  He said his wife wanted to do higher study in Australia, and that they were intending to come to Australia together with their son, who would have been a baby at the time.  But after the visas were refused, the family remained in India.  The applicant said that his wife did not undertake any further study in India after their student visas were refused.   

17. Evidence was given at the hearing that the visa applicant no longer intends to bring his wife and son with him as travelling companions if he is granted the visa.  He said his son is studying and his wife will stay in India to look after his and the review applicant’s parents.  At the time of the Tribunal hearing, the review and visa applicant’s parents were in Australia, staying with the review applicant.  They arrived to visit him in December 2019.  This trip was intended to include the visa applicant, his wife and child and the parents.  Only the parents’ visas were granted and they travelled to Australia soon after the visas were granted.  Their Australian visitor visas have been extended to October 2022.

18. The review applicant said at the hearing that his and his brother’s parents would be departing Australia in February or March 2022, or whenever the house the review applicant is building is finished.  The review applicant said he started building the house in Gregory Hills about two months before the Tribunal hearing and that he anticipates it will be finished in around March 2022.  Given that the estimated completion date is some time around March 2022, the Tribunal considers it likely that their parents are still onshore.

19. The review and visa applicant’s sister and her children have visited previously, before their parents, in 2019.  There is no evidence before the Tribunal that they were non-compliant with their visa conditions, or that they did not depart Australia.  Likewise, there is no evidence before the Tribunal that the parents of the review applicant, visa applicant and their sister have been non-compliant with their visa conditions when in Australia.

20. When the visa application was made, the visa applicant provide various documents relating to his employment, income, savings and other circumstances.  He also provided evidence of the support he would receive from his brother while in Australia.  At the time the visa application was made in late 2019, the visa applicant was employed by Chavi Enterprises.  He has since changed jobs and provided the Tribunal with evidence from his current employer, Gangotri Printers.  The documents indicate that the visa applicant commenced employment with Gangotri Printers in October 2021. 

21. Additional documents have been provided to the Tribunal, including an HDFC Bank statement for a joint account held by Mrs Richa and Mahesh Kumar Chopra, for the period January to November 2021.  There are regular withdrawals and deposits, with an opening balance of 500,000 and a closing balance of 892,302.92.  Property deeds and related legal documents have been provided, together with the  visa applicant’s Indian Income Tax Return Acknowledgement for assessment year 2021-22, indicating his total income to have been 4,64,660 . The visa applicant also provided  three documents from his new employer, Gangotri Printers, including:

    ·Letter of Appointment from Gangotri Printers, signed and dated 25 September 2021, confirming the applicant’s commencement date of 1 October and annual salary

    ·Letter signed by Himanshu, Proprietor, dated 27 November 2021, confirming the visa applicant has worked there as a Sales Executives since October 2021.  Included in the letter is the following:

    ‘During his tenure with our organisation, we found him to be sincere and hard working and we wish him all the best in his future endeavors.’  It is included that his monthly salary is Rs 40,000

    ·Leave sanction letter, undated but signed by Himanshu, Proprietor, confirming the visa applicant’s commencement of employment, October 2021, and that he is employed on a full time basis as a Sales Executive with an annual salary of Rs.4,80,000 per year; and that they ‘have no objection’ to him visiting Australia for tourism to see his brother and that they sanction his leave for 15 days

22. An examination of the visa applicant’s bank statement that was provided shows a credit to the account of 40,000 from Gangotri Printers on 20 November 2021.  The visa applicant said at the hearing that he left his employment with Chavi (his employer at the time of application) in ‘maybe’ December 2020 and that up until October 2021 he was looking after his property, collecting rent and looking for a job.  The visa applicant gave oral evidence that his wife does not work, she is a housewife.

23. The Tribunal is not inclined to accept, after looking for a job for nearly a year, then appearing to have found one, that the visa applicant would be planning to take two weeks’ holiday so soon after starting.  All three letters from Gangotri contain the same company stamp and signature of Himanshu.  However, the Tribunal has significant concerns about the wording of the letter dated 27 November 2021.  The writer speaks of the visa applicant in the past tense and includes that they ‘wish him all the best in his future endeavours’.  This has more the complexion of a reference for someone who is leaving a job to pursue ‘other endeavours’ than of one where the writer is expecting them to return.   

24. The visa applicant gave evidence at the hearing that if the visa is granted he intends to travel soon after, suggesting that he would like to travel before February.  He said that he was not planning for his son or wife to travel with him, as he was previously when the visa application was made, because his son is studying and has exams, and his wife would remain in India to look after her parents-in-law.  The child is six years of age and, even allowing for the possibility that there are more pressures on a child in the Indian education system, the Tribunal is not convinced that the studies of a six year old would be such a high priority.  At the time this evidence was given by the visa applicant, he also said in his oral evidence that he thought his parents would return to India in March or April. 

25. The visa applicant claims to be planning a two week visit to see his family Australia, and has provided a letter from Gangotri Printing stating that they have granted him 15 days’ leave for that purpose.  At the time of the hearing, he was hoping to travel by February 2022, for about two weeks and provided evidence that indicated he would be returning to his employment with Gangotri Printers after the 15 days’ leave they granted him.  The Tribunal is not entirely convinced, if the visa is granted, the applicant genuinely intends to return to India after two weeks for the purpose of working at Gangotri Printers. 

26. On the evidence, and on the basis of the concerns expressed above, the Tribunal is not satisfied that the visa applicant has continuing full time employment to return to after a trip to Australia.  In addition, it does not seem as though the visa applicant’s wife needs to remain in India to look after his parents in February when regard to the timeframes expressed by the visa applicant are considered relating to his intended travel dates and the estimated timeframe within his parents may depart Australia.  They have visas valid until October 2022 and appear to be entitled to remain in Australia until that time if they wish to. 

27. Overall, the Tribunal did not consider the visa applicant to have given very credible oral, or reliable documentary, evidence relating to his employment and the reasons why he says that his wife and son would no longer be included as his travelling companions.  It is of some concern that in the previous student visa application, it was not declared that the visa applicant in the current case had previously been refused a visitor visa in 2011, which was incorrect information.  It is acknowledged, however, that the matter has been declared in the present application.

28. The conditions that the visitor visa would be subject to are that the applicant not work and that he not study or engage in training for more than three months.  Any potential breach of these conditions is of less concern to the Tribunal than that they are not conditions that would prevent the visa applicant from making a valid application onshore, while he held the visitor visa, for another substantive visa he was entitled to apply for.

29. The Tribunal has considered the applicant’s circumstances and, on balance, when all relevant matters have been considered, is not satisfied that he 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

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

    Jennifer Cripps Watts
    Member