GHAI (Migration)

[2020] AATA 4571

GHAI (Migration) [2020] AATA 4571 (4 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr HARISH KUMAR GHAI

VISA APPLICANTS:  Ms Kumari Suman GHAI
Ms Parvi MARWAHA

CASE NUMBER:  1818915

HOME AFFAIRS REFERENCE(S):          BCC2018/2010132

MEMBER:Hugh Sanderson

DATE:4 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 4 November 2020 at 3:32pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – visa history – previous migration application shows desire to live in Australia – permanent resident mother in home country and unable to return to Australia because of COVID-19 travel restrictions – mother wants visa applicant to travel with her – visa applicant not working but earns rental income – review applicant and other sibling’s funds and offer of bond – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 Immigration on 12 June 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 9 May 2018. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (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 visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied the visa applicant genuinely intended to stay temporarily in Australia.

   Background

5. The first named visa applicant (the visa applicant) is a citizen of India and is currently 49 years old. She was previously married and divorced her husband in 2013. The second named visa applicant is the child of that relationship who is currently 11 years old. They were sponsored for the application by the review applicant who is the visa applicant’s brother. He was granted a skilled migrant visa in 2006 and is now an Australian citizen.

6. The visa applicant applied for the visa hoping to be able to attend a religious blessing of the review applicant’s home in June 2018. She and her daughter planned to remain in Australia for about three months to conduct the blessing and have a holiday while her daughter was on school holidays. She said that after her divorce from her husband she had been looking after her daughter and managing contract farming from her home. She had previously applied for a skilled migrant visa in 2008, however, this application had been refused by the Department. She had previously been granted a Visitor visa in 2015, however, did not travel to Australia as her daughter had commenced schooling before they had the opportunity to spend time in Australia. In a statutory declaration provided by the review applicant, it was stated that if the Department considered the visa applicant would not return to India from Australia if she had her child with her, then the visa applicant would leave her daughter with her mother in India and travel alone.

7. The delegate who considered the application noted the following:

   ·Although claiming that she was doing contract farming, it appeared the visa applicant was unemployed with no employment ties to India;

   ·There was no evidence of previous travel by the visa applicant or compliance with Australia’s immigration laws;

   ·The visa applicant had previously applied to migrate to Australia indicating a desire to live in Australia; and

   ·Although providing a specific reason to travel to Australia, there were significant concerns that the visa applicant would not remain temporarily in Australia.

8. Taking these matters into account, the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purposes for which the visa was applied for. Accordingly, the delegate found the applicant did not meet the criteria in cl.600.211 and refused the application. In respect of the application of the visa applicant’s daughter, the delegate found that she was too young to form an intention to comply with the visa conditions on her own but would be influenced by her mother. As her mother’s application was refused, the delegate found that the second named visa applicant did not meet the criteria in cl.600.211 and refused her application.

   Information to the Tribunal

9. The applicant’s agent provided submissions where the following was claimed:

   ·The review applicant’s mother, Tripta Devi, has the right to reside in Australia but has been in India since January 2020 and, due to the COVID-19 pandemic travel restrictions, has been unable to return to Australia;

   ·Arrangements are being made for Ms Devi to return to Australia but due to her age she does not want to travel alone and hopes to be able to travel with the visa applicant and her daughter;

   ·The review applicant is willing to lodge a bond to ensure the compliance of the visa applicant with any visa granted to her;

   ·The review applicant has to look after her house and the agricultural land that she rents out in India and therefore will be required to return to India at the end of any visit;

   ·The visa applicant did not travel to Australia when she was granted a visa in 2015 as it was granted to her after the purpose for that visa, to attend the mundan ceremony of her brother’s son; had already occurred and her daughter had to return to school;

   ·The visa applicant has another Australian citizen brother, Sham Sunder, who has a new baby child and would like to attend the mundan ceremony for that child; and

   ·Both the review applicant and his brother in Australia are essential workers and cannot travel to India.

10. The review applicant appeared before the Tribunal by telephone on 3 November 2020 to give evidence and present arguments. The Tribunal also received evidence from the visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages when the Tribunal was speaking to the visa applicant. The review applicant was represented in relation to the review by his registered migration agent who attended the hearing by telephone.

11. The review applicant gave evidence as to his situation in Australia. He said that he was living with his wife and two children. He was working as a critical care nurse. His brother is married and lives with his wife and son. He also works as a nurse. His mother also has permanent residence and usually lives in Australia, however, at this time is in India with the visa applicant although she is trying to return to Australia.

12. The review applicant said that the farm in which the visa applicant obtains rent from and the home in which she lives have been owned by their family for many years. He said the only income the visa applicant receives is the rent she receives for the farm together with some money that the review applicant and his brother send her. He believed that she was able to live comfortably with her daughter from this income in India.

13. The review applicant said that the visa applicant divorced her husband in 2014. He said that she had no contact with her former husband and her former husband surrendered custody and guardianship of their daughter to the visa applicant. He said that when the visa applicant applied for the Skilled Migrant visa in 2007 it was because her husband wanted to live in Australia.

14. The review applicant provided details of the reasons why he wanted his sister to be able to visit him and his family and their brother in Australia. This included participating in the mundan ceremony of the cutting of the hair of their brother’s child and also for the blessing of his home. He said that he also hoped that his sister would be able to accompany their mother on her return to Australia.

15. The review applicant said that both he and his brother were willing to lodge a bond to ensure that the visa applicant would comply with any visa grant to her.

16. The visa applicant gave evidence which was consistent with that given by the review applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

19. In the present case, the visa applicants seek the visas for the purposes of visiting family members and participating in various culturally important ceremonies with her family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

20. 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)).

21. 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.600.612):

    ·8101 – must not work in Australia

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

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

22. The visa applicant and her daughter will be supported by the visa applicant’s brothers while in Australia. The Tribunal is satisfied that the visa applicant’s brothers have sufficient funds to be able to meet all the expenses of the visa applicant and her daughter while in Australia. The Tribunal finds that the visa applicant will not work in Australia and, as a child, her daughter would not be able to work.

23. The time period during which the visa applicant and her daughter are planning to visit Australia would only be limited. It would be outside the normal school term for the visa applicant’s daughter. The Tribunal is satisfied that the visa applicant and her daughter will not engage in study or training over the period they are in Australia.

24. The visa applicant previously applied for a Skilled Migrant visa in 2007. The Tribunal accepts that one of the moving forces in the visa applicant applying for that visa at the time was her then husband’s desire to reside in Australia. She did not make any further application for a permanent visa after that time and has since divorced her husband. The Tribunal finds that the applicant has no intention of applying for any further substantive visa while in Australia. The visa applicant has stated that she has no problems with her former husband’s family arising as a result of their divorce or any other problems. The review applicant has confirmed that the visa applicant and her daughter have no difficulties residing in India from any person or group.

25. The majority of the visa applicant’s family resided in Australia. She continues to receive support while living in India from her brothers in Australia. Although her mother is currently living with her in India, her mother has the right to reside permanently in Australia and desires to return to Australia as soon as possible. The visa applicant has no other close relatives residing in India.

26. The visa applicant has the responsibility of managing the farm that was in her family for many years as well as living in the home which was her family’s home. As a result of these assets and the income she receives the Tribunal accepts that the visa applicant is able to lead a comfortable life with her daughter.

27. The visa applicant and her daughter were granted Visitor visas in 2015. Despite these visas being granted to them, they did not enter Australia as the visa applicant’s daughter’s school term had re-commenced by the time the visa was granted and the mundan ceremony that was taking place for the review applicant’s son had taken place, taking away one of the reasons to visit Australia.

28. The fact that the visa applicant was granted a Visitor visa to enter Australia and she did not enter Australia on that visa must be given significant weight when considering whether she genuinely intends to remain temporarily in Australia. If the visa applicant did have the intention to remain living in Australia or failing to return to India once her Visitor visa expired, she would have done so in 2015. Her circumstances since then have not changed dramatically. She divorced her husband and 2014 and it would seem more likely that she would have greater incentive to remain in Australia in 2015, soon after her divorce, rather than six years after the divorce was finalised. Her daughter remains at school and she remains living in the home that has been owned by her family for many years and managing the rule rural property her family owns.

29. There is no information before the Tribunal which would indicate that any members of the visa applicant’s family have not always complied with requirements from the Department and complied with all immigration and other laws of Australia.

30. The visa applicant had specific reasons to be able to visit Australia at the time she applied for the visa. Those reasons have now passed in time. The Tribunal accepts, however, that she has specific family and cultural reasons in which she wishes to visit Australia at this time. This includes being able to participate in culturally important family events including the blessing of the review applicant’s house and participating in the mundan ceremony for her brother’s son. She also wishes to be able to accompany her mother when she returns to Australia from India.

31. In all the circumstances, the Tribunal is satisfied that the visa applicant and her daughter have a genuine intention to remain temporarily in Australia for the purpose for which the visa is granted. The review applicant and his brother have indicated that they are willing to lodge a bond to ensure that the visa applicant complies with any visa granted to her. The Tribunal does not consider this requirement as needed.

32. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

33. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Hugh Sanderson
    Member