Dobaria (Migration)

[2024] AATA 733

Dobaria (Migration) [2024] AATA 733 (25 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Atulkumar Dayalal Dobaria

VISA APPLICANT:  Mr Shaileshkumar Dobaria

CASE NUMBER:  2304144

HOME AFFAIRS REFERENCE(S):          BCC2023/1414085

MEMBER:Rachel Da Costa

DATE:25 March 2024

PLACE OF DECISION:  Sydney

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

Statement made on 25 March 2024 at 2:58pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – unverified financial documents – information about close relatives not provided – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

CASES

Hasran v MIAC [2010] FCAFC 40     

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 15 March 2023 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 28 February 2023. 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 has a genuine intention to stay in Australia temporarily.

5. On 6 March 2024, the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide information about close relatives who have visited Australia in the last 10 years, updated information about the visa applicant’s employment and financial situation in India, and information about the visa applicant’s personal circumstances which would encourage him to return to India at the end of his visit.

6. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 20 March 2024, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

8. The Tribunal has before it the Departmental and Tribunal files, which contain the information provided by the visa applicant and review applicant in support of the Visitor visa application, as well as the delegate’s decision. Where relevant, these documents are referred to in detail below. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 a family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

12. Based on information provided to the Department and the Tribunal, the visa applicant is a 50-year-old man from India and the review applicant is his brother.

13. 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)). There is no evidence before the Tribunal that the visa applicant has ever travelled to Australia in the past or held a visa for Australia.

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 (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(3)):

    ·8101 – must not work in Australia

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

15. From documents provided by the visa applicant, including his Visitor visa application form and a letter accompanying the application form, the Tribunal understands the following. The visa applicant states that he is a self-employed businessman who owns the Shubham Guest House in Virpur Jalaram, Gujarat state. He has run this business since May 2000. The guest house accommodates pilgrims from around the world who visit to pray and get blessings from Jalaram Bapa. He resides with his mother, Nanduben Dayabhai Dobariya, and his father is deceased.

16. The visa applicant has provided bank statements and other financial documents from 2022 and 2023 which appear to confirm that he operates the Shubham Guest House and has a source of income. Without further explanation, some of the financial documents provided are difficult to understand. The visa applicant has also provided some untranslated documents, the subject of which is not apparent to the Tribunal. The visa applicant has provided his Indian income tax assessments for 2020-21, 2021-22 and 2022-23, showing a most recent annual income of Rp 428830. He has provided documents relating to a Life Insurance Policy and a banking passbook. He has provided a Valuation Report from DB Chandarama dated 9 December 2022 for his 20% interest in a parcel of agricultural land, along with two Valuation Reports in respect of two residential buildings owned by Nirmalaben Dayabhai Dobaria. It is not clear to the Tribunal who this person is or their relationship to the visa applicant or review applicant. The visa applicant states that he owns property with a market value of around Rs3,12,52,000 and he also has some savings. In his Visitor visa application form, the visa applicant states that he will not work or study in Australia.

17. In his Visitor visa application form, the visa applicant states that he has never been married. His mother is still alive and lives in India. The visa applicant in his letter to the Department says he wishes to come to Australia to visit his brother and brother’s family and he will return to India within the validity period of the visa. He wishes to stay from 5 April 2024 to 5 June 2024. The visa applicant states that he will pay for his own travel to Australia and his brother (the review applicant) will meet his living expenses while the visa applicant is in Australia.

18. The review applicant provided a Statutory Declaration to the Department made 12 February 2023, in which he states that he is married and owns his own house. He will pay all his brother’s expenses for his visit to Australia, including his airfares and living expenses, and he has sufficient space in his home to accommodate his brother during his stay. The review applicant has provided copies of the bio-data pages of his Australian passport, along with those of his wife and daughter.

19. The review applicant has provided a document from the Australian Securities & Investments Commission showing he is the sole shareholder in a company called MGM Cleaning Pty Ltd (MGM Cleaning). Commonwealth Bank transaction statements for the review applicant and his wife covering the period October 2022 to February 2023 show an opening balance of $1,438.10 and a closing balance of $3,124.54 and show income being received from MGM Cleaning. The review applicant has also provided National Australia Bank transaction statements for MGM Cleaning for December 2022 to February 2023, as well as transaction statements for him and his wife for the period October 2022 to February 2023 showing an opening balance of $119,576.88 and a closing balance of $81,518.92. He has also provided a copy of a Sydney Water bill for January to March 2023.

20. In his statutory declaration, the review applicant confirms that his brother will depart in accordance with the conditions of his visa.

21. The Tribunal has considered whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The Tribunal has also considered all other relevant matters (cl 600.211(c)).

22. As noted above, on 6 March 2024, the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting him to provide information about close relatives who have visited Australia in the last 10 years, updated information about the visa applicant’s employment and financial situation in India, and information about the visa applicant’s personal circumstances which would encourage him to return at the end of his visit. The review applicant did not respond.  

23. Accordingly, the Tribunal does not have up to date information before it about the migration history of the review applicant’s close relatives, the visa applicant’s current employment and financial situation in India, or information about the visa applicant’s current personal circumstances, including incentives he would have to return to the India at the end of his visit if the visa were granted.

24. Based on the information before it, the Tribunal is not satisfied that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject.

    Conclusion

25. 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

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

    Rachel Da Costa
    Member