Fatima (Migration)

[2023] AATA 3913

Fatima (Migration) [2023] AATA 3913 (16 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rahela Fatima

VISA APPLICANT:  Mrs  Afreen Fatima Shaila

REPRESENTATIVE:  Mr Raheel Umer (MARN: 1679332)

CASE NUMBER:  2215971

HOME AFFAIRS REFERENCE(S):          BCC2022/928582

MEMBER:Stephen Witts

DATE:16 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 16 November 2023 at 12:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to return or remain – family, work and finances – previous compliant travel to Australia and third country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 12 October 2022 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 11 October 2022. 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 of which the visa is granted.

5. The review applicant appeared before the Tribunal on 16 November 2023 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant.

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

8. The review applicant was represented in relation to the review.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

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

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 (cl 600.211(a)).

13. The Tribunal finds that there is no evidence before it of any substantive visa breaches by either applicant.

14. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

15. The Tribunal has been provided with a copy of the relevant delegate’s decision record dated 12 October 2022 by the applicants.

16. In this decision it was contended by the delegate that it made an assessment as to whether the visa applicant intends a temporary stay in Australia considering the visa applicant’s employment, economic and family circumstances, and other matters including their credibility and previous travel history. According to the delegate it assessed the visa applicant’s financial status noting that the bank account material provided was not significant and that therefore the visa applicant may not have a strong economic incentive to return to her home country of India, and it also asserted that the material provided did not necessarily match with material provided in the bank statement dated 13 September 2022.

17. The Tribunal has also considered material provided by the applicants prior to the hearing.

18. On 14 November 2023 a submission was received by the applicant’s representative stating that the reason for the visa refusal was that it was stated by the delegate that there was an inadequate commitment to return to India and that there was also a consideration of the overall economic and employment conditions of living in India which led to the decision by the delegate.

19. The representative stated that material was submitted seeking to address the above issues raised by the delegate including a bank cover letter seeking to demonstrate available funds held by the applicant, a bank statement, an employment letter, a tax return, salary slips, and bank balance material.

20. According to the submission the visa applicant was born in India in 1984 and currently resides with her husband and two children, and that she is working full-time and has caring responsibilities towards her family, and that this demonstrates that she has family ties in India which would act as an incentive for her to return.

21. It was also stated that the applicant has previously visited Australia and did not breach any conditions of her visa. It was further stated that she has over AU$20,000 equivalent in her savings account and that her sister will support her visit to Australia.

22. It was further stated that she has one sister in Australia and the rest of her family reside in India and the USA which demonstrates that she has more ties in India than in Australia.

23. It was also stated that the applicant’s sister (the review applicant) is an Australian citizen and is aware of the legal implications if the applicant breaches any conditions of her visa and that there is a mutual understanding and trust between the sponsor and the applicant.

24. Regarding the material referred to above a bank letter was provided for the applicant for a bank in India dated 30 October 2023, and a statement of account was also provided. Tax material for the visa applicant was also provided as were payslips as noted above.

25. Also included was employment verification letter for the visa applicant stating that she is working as a human resource advisor for a USA client of the company located in Hyderabad and that she has been working since December 2022 for this organisation.

26. At the hearing the Tribunal had a discussion with the applicants regarding the application.

27. The visa applicant (the applicant) stated that she has visited Australia before, in 2019 on a visitor visa, to see her sister. She stated that she has also visited other countries including Saudi Arabia to see her brother-in-law and has recently been there for two weeks. She stated that she has applied for a visitor visa before, she thinks, in 2020 and 2022.

28. She stated that she has two children, one aged 17 who is just finishing high school level education, and one who is 7 years old and is in grade 4. She stated that she has an elder sister in India with her as well as her in-laws, and that she has a mother, two brothers, and a sister in the United States of America. She stated that she has her other sister (the review applicant) in Australia and her 2 children but that she does not have any other relatives in Australia.

29. Regarding the issue raised by the delegate with her financial information provided at the time of the original application she stated that the information provided was correct but was sent as a fixed amount in a different account rather than in her ordinary savings account and so that may have been the reason why there was some doubt about the financial material she provided.

30. Regarding the other factors she stated that she has a significant incentive to return home to India, she has visited Australia before and returned in 2019, she has 2 children, one of which is about to start a medical tertiary course in India, and that her husband owns a business and that he needs to continue to work in that business. She also stated that she has a good quality job in human resources based in her home country that she has been undertaking for some time.

31. The review applicant stated that she first came to Australia in 2013 on a spousal visa and that her husband first came in 2009 on a student visa and then became a permanent resident after being sponsored by a restaurant. She stated that she has a five-year-old, a two-year-old, and that she is pregnant with another child. She stated that she works as a primary schoolteacher.

32. The Tribunal has considered the evidence carefully noting in particular that the applicant has visited Australia before on a visitor visa, and that she does have a considerable incentive to return to her home country including her husband and 2 children who would continue to reside there.

33. The Tribunal notes the contention that India’s economic circumstances are not equivalent to Australia’s and notes that this often can be a significant incentive for an applicant to remain in Australia, however under the circumstances noted above the Tribunal finds that it is most likely that the applicant does intend a genuine temporary visit.

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

35. 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 that the requirements of cl 600.211 are met.

    DECISION

36. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations.

    Stephen Witts
    Member