Christian (Migration)

[2018] AATA 4244

Christian (Migration) [2018] AATA 4244 (24 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Gary Christian

VISA APPLICANT:  Ms Priyadarshini Sushilkumar Palmer

CASE NUMBER:  1811263

DIBP REFERENCE(S):  BCC2018/174707

MEMBER:Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          24 August 2018 at 3:33 pm (QLD time)

DATE OF WRITTEN RECORD:                12 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a visitor visa for reconsideration with the direction that the visa applicant meets the criteria for the grant of a visitor visa contained in clause 600.211 of Schedule 2 to the Migration Regulations.

Statement made on 12 September 2018 at 5:26pm

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) –  genuine temporary stay – visa applicant and family members have previously abided by visa conditions – strong incentives to return to home country – established professional practice – strong family connections – Tribunal is satisfied the applicant will not work or study – decision under review remitted for reconsideration

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.611

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 February 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 24 August 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The visa applicant applied for a visitor visa on 11 January 2018. The criteria for a Subclass 600 visa are set out in part 600 of Schedule 2 to the migration Regulations.

4. Relevantly to this case they include clause 600.211 which requires that the visa applicant must satisfy the Minister and this Tribunal that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The delegate refused to grant the visa on the basis that the visa applicant did not meet clause 600.211 because the delegate was not satisfied the visa applicant genuinely intended to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 24 August 2018 to give evidence and present arguments. 

   Consideration of claims and evidence

6. The issue in this case is whether clause 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 (a) 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, (b) whether the applicant intends to comply with the conditions to which a Subclass 600 visa would be subject, and (c) any other relevant matters.

7. In the present case, the visa applicant seeks the visa for the purpose for visiting her family in Australia.  This is a purpose for which a visitor visa may be granted. 

8. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether she has complied substantially with the conditions of the last visa held or any subsequent bridging visa. 

9. The visa applicant travelled to Australia in September 2014 as the holder of a Subclass 573 student visa, to undertake post-graduate studies in Australia. She departed Australia on 5 December 2015, well within the period of her visa.  Therefore the Tribunal gives great weight to the fact that the visa applicant has previously travelled to Australia and abided by the conditions of her visa on that occasion. 

10. The Tribunal also has to have regard to whether the applicant intends to comply with the conditions to which a Subclass 600 visa would be subject.  In the absence of evidence that the applicant meets the criterion in clause 600.611(4), the applicant would be subject to conditions 8101 and condition 8201.These conditions prohibit work and studying exceeding three months respectively. 

11. The visa applicant is a lawyer and a legal advocate in India with under-graduate qualifications in law and commerce.  The Tribunal is satisfied that the visa applicant will not work during her stay and there is no evidence to suggest that she will study for more than three months if she were permitted to travel to Australia. 

12. The Tribunal has considered all other relevant matters and has considered the relevant departmental guidelines in the department’s Procedures Advice Manual.

13. After the visa applicant’s visa was refused by the Minister’s delegate, the review applicant and his wife have provided a large amount of information contained in documents to the Tribunal.  They also provided evidence at the hearing before the Tribunal.  The information provided by the review applicant and his wife shows that the visa applicant has a number of reasons, or strong incentives, for her to return to India before a visitor visa expires in Australia. 

14. Those reasons include that both of her parents live in India. They live within close proximity of the visa applicant’s house and the evidence of her sister at the hearing was that she spends her time between her house and her parents’ house where she provides care for her elderly parents. 

15. In addition, her brother and his wife and child live in India and they similarly have a close relationship with both the visa applicant and the visa applicant’s parents. 

16. The review applicant has provided evidence of the visa applicant’s practice as a lawyer in India where she appears before the Gujarat High Court regularly and the Family Court there.

17. The review applicant provided evidence that the visa applicant also works as a counsellor in what appears to be what would be called alternative dispute resolution in Australia, involved in alternative dispute resolution including mediation in India.  They have provided documents which indicate that the applicant regularly appears in the Gujarat High Court and has done so for some time. 

18. In addition, the review applicant has provided evidence that the visa applicant owns a property which is close to the Gujarat High Court.

19. The review applicant has provided a passbook from a bank account in which a sum of $8000 or $9000 was deposited in what appears to be a term deposit in India.  The visa applicant’s sister indicated that in addition to her close family, her parents and her brother in India, the visa applicant also has a number of friends, community, extended family members, that is the brothers and sisters of her parents and their children and their children’s children, that they are very close family in India.

20. She indicated that she believes that her sister is doing very well and enjoys her profession and her legal practice in India and that she has no doubt that her sister would return to India before her visitor visa expired if she were granted a visitor visa in Australia.  The Tribunal accepts the evidence of the review applicant and his wife and finds that there are strong incentives for the visa applicant to return to India, including strong family connections, a thriving legal practice in India and various friends and extended family members there.

21. The Tribunal has also taken into account that both the review applicant and his wife have told the Tribunal that they have both had other family members visit Australia in the past and those family members have always complied with the conditions of their visas.  Both the review applicant and his wife indicated that it was their understanding that if the visa applicant overstayed her visa in Australia, that may jeopardise their ability to sponsor other family members in the future.

22. The visa applicant’s sister, the review applicant’s wife, also indicated to the Tribunal that the visa applicant had no reason to fear living in India, that she had no reason to apply for a protection visa in Australia and that she had wanted her sister to visit initially to help celebrate the wedding anniversary with her husband, the review applicant, and also to be present at the christening or baptism of their only child, Leroy, in Australia.

23. The Tribunal has also placed significant weight on the fact that the visa applicant has already been to Australia to study and complied with all the conditions of her visa on that occasion and returned to India well before that student visa expired. 

24. 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 the requirements of clause 600.211 of Schedule 2 to the Migrations Regulations are met.

    DECISION

25. The Tribunal remits the application for a visitor visa for reconsideration with the direction that the visa applicant meets the criteria for the grant of a visitor visa contained in clause 600.211 of Schedule 2 to the Migration Regulations.

    Tigiilagi Eteuati
    Member