Gill (Migration)

[2020] AATA 2712

Gill (Migration) [2020] AATA 2712 (21 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Raj Gill

VISA APPLICANT:  Mrs Harpreet Kaur Gill

CASE NUMBER:  1807147

HOME AFFAIRS REFERENCE(S):          BCC2018/50554

MEMBER:Melissa McAdam

DATE:21 April 2020

PLACE OF DECISION:  Sydney

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 21 April 2020 at 10:38am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – proposed visit to applicant’s husband – ongoing spouse visa application – undisclosed previous visas and application – alleged misuse of the visa applicant’s identity – Department’s incorrect record of citizenship – review applicant’s frequent visits to India – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231; Schedule 8 Conditions 8201, 8503, 8531

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 13 March 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

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

3. The visa applicant applied for the visa on 4 January 2018. 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 Sponsored Family stream.

4. 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.

5. The visa applicant provided the following information in her visa application:

   a.She is a 36 year old married woman from Punjab in India. Her visitor visa application is sponsored by her husband in Australia, the review applicant. He is an Australian citizen.

   b.She wishes to come to Australia from March to May 2018 to celebrate her marriage anniversary with her husband and her birthday.

   c.She has lodged a spouse application but this takes time.

   d.Her husband works as a taxi driver in Australia.

   e.Her stay in Australia will be supported by her husband.

   f.She attached copies of the following documents to her application:

   i.Her Indian passport, recording her husband’s name as her spouse.

   ii.Newspaper announcement of her change of name to her husband’s surname.

   iii.The review applicant’s Australian passport.

   iv.The review applicant’s bank account statement.

   v.The applicants’ Marriage Certificate.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because her claimed relationship with her husband had not yet been assessed and tested so the delegate was unable to find that the relationship and purpose of her visit was genuine; she had not indicated the presence of any family members in India; she had not provided evidence of any other significant ties to India; she had disclosed the refusal of a Prospective Marriage visa in August 2017 but did not disclose being refused a temporary maritime crew visa in June 2014, a Visitor visa in July 2014, and another temporary maritime crew visa in July 2014; the number of her visa applications raised concerns whether she intended a genuine visit; and her intention to travel to Australia frequently indicated a high likelihood she did not intend a genuine temporary stay.

   Information to the Tribunal

7. On 18 December  2018 the review applicant provided a written submission to the Tribunal outlining the following:

   -A letter of support from Ms Marilyn Smith.

   -Copies of the visa applications in the visa applicant’s name and an old passport number for a Maritime Crew Visa obtained by the review applicant under FOI legislation. They refer to addresses and other details much different from the visa applicant’s address and details in India.

   -The applicants’ Marriage Certificate.

   -The visa applicant’s current passport.

   -An affidavit by the visa applicant stating that she possessed an old passport which expired in October 2016. She has obtained a new passport which includes details of her husband.  She visited Norway in 2006 and Denmark in 2009.  She travelled to Bahrain in 2012. She then studied at a school of nursing in Punjab between June 2013 and December 2015.  She has not applied for a visa to any country during her years of study. She became engaged to the review applicant in January 2016 and they were married in April 2016. The allegations against her from the Department are false.  It seems someone has misused her identity.

   -A letter from the review applicant’s Agent asking for the review application to be expedited. He outlines that they obtained documents relating to the alleged earlier visa applications under FOI.  The applications are bogus and malicious. Three of them refer to Switzerland, Singapore and Japan as the country of passport and they each provide the incorrect place of birth for the visa applicant.  The applicants are in a genuine marriage and the review applicant has been several times to India to see his wife and take her gifts.  He regularly sends her money. Their relationship is well known to others.

   -An email, dated 30 August 2018, from MP Lachlan McGrath to the review applicant stating that he has made representations to the department and “hopefully they will hear some good news soon”.

   -An Affidavit by Veerpal Kaur Sarpanch stating that she is the Sarpanch of the visa applicant’s village. She knows the applicants personally. She attended their marriage ceremony and their marriage is a genuine one.

   -A Western Union printout listing moneys sent to the visa applicant in India, in the period May 2016 to June 2018.

   -A newspaper advertisement stating that the visa applicant has changed her surname to her married name.

   -Screen printouts of numerous WhatsApp video call times between the applicants.

8. On 2 October 2019 the review applicant provided a written submission to the Tribunal outlining the following:

   -A request for priority processing.

   -The visa application was refused for reasons some of which were later withdrawn by the Department for subsequent visa applications.

   -The Department stated that the visa applicant had been refused several visas before applying for this visitor visa.  They were two Temporary Maritime Crew visas and a Business Visitor visa. The applicants were perplexed by this when no such visas had been applied for.  It seemed there was a ‘glitch’ at the Department which was considering applications made by another person.

   -After substantial complaints it seems the Department has understood the error made and has not noted these earlier visa applications in any subsequent refusals.

   -The visa applications made by the visa applicant have been:

   ·Prospective Marriage visa

   ·Partner visa

   ·Visitor visa (Family Sponsored) (x3)

   -The Department has also consistently noted that the visa applicant is a citizen of Switzerland so her applications have been processed through the wrong queue.  After many complaints the Department has admitted the mistake and rectified it.

   -The sponsor, the review applicant, is an Australian citizen who operates a small business. He wants his wife to visit him for holidays as it is difficult for him to visit India because of his business. They have a Partner visa application in process which is taking considerable time. They miss each other. 

   -His wife’s visitor visa application was refused due to incorrect reasons by the Department that the visa applicant was untruthful about past visa applications.  However these visa applications were never lodged by the visa applicant.

   -The visa applicant is a genuine visitor and has arranged leave from her employment.

   -The review applicant travelled to India approximately nine times in the recent past to visit his wife.  This has affected his business as a hire-car driver and been financially costly.

   -The review applicant has become depressed by the visa refusals to his wife. He is seeing his doctor for stress and anxiety.

9. The review applicant attached the following documents to the submission:

   -Letter from Doctor K. Mathew, dated 23 September 2019, referring the review applicant to another doctor for his depression and insomnia.

   -A copy of a written complaint by the applicants to the Department regarding the reasons for the refusal of the visa applicant’s visa application.

   -A copy of another written complaint to the Department regarding the Visitor visa application refusal and the Department’s mistakes regarding the applicant’s profile and country of citizenship.

   -A copy of a third written complaint to the Department regarding the Visitor visa application refusal.

   -A copy of a response from a Department officer acknowledging the review applicant’s complaints and informing him the Department has corrected its records regarding the visa applicant’s country of citizenship.

10. On 28 January 2020 the review applicant provided a written submission which included the following information:

    -None of the applicant’s relatives have come to Australia within the past 10 years.

    -The review applicant’s mother visited Australia in about 1992.

    -The visa applicant is employed full-time at Sukhmani Hospital as a Gynaecologist (ANM & OT Technician), and has been employed in this position since 1 September 2018. She is also the community outreach officer of the hospital across villages in India.

    -The visa applicant has a monthly salary of approximately, INR 40,000. She has savings of approximately INR 705,996.63, that is equivalent to $14,708.26.

    -The visa applicant's father owns three properties that are to be apportioned to the applicant as per her father's will.

    -The review applicant is in a very strong financial position, holding a net position of savings and shares of over $1.2 million, not including his full ownership in his property.

    -The visa applicant is a full-time employed healthcare professional. She treats her role very seriously and it is close to her heart. She initiates outreach programs for individuals and families in regional parts of Punjab and village areas, in an effort to educate the people in the area of gynaecology, safe practices, testing, as well as general awareness of women’s healthcare and wellbeing. Without her the outreach  programs would not run.  She is an integral part of the social work operation.

    -The visa applicant has her whole family in India and is attached to her parents, brother, sister, niece and nephew. The family lives as a joint family.

    -The visa applicant and sponsor were perplexed to be informed of the earlier visa refusals, when no such visas were applied for in the past.

    -The applicant is an honest hard-working individual who sincerely wishes to visit her husband in Australia to spend some time with him, visit parts of Australia for sightseeing, and see how her husband lives. Her husband has visited her approximately 9 times in the recent years and wishes her to visit him in Australia so she can meet his circle of friends in Australia and he can have the opportunity to show his wife around Australia and show her how he lives.

    -The review applicant has been very stressed with this situation as he is baffled how his wife has not been allowed to visit him and that the processing of the application and review has taken a severe length of time.

    -The applicants attached the following document copies:

    ·Several salary slips in the visa applicant’s name, paid by the Sukhmani Hospital. The slips refer to the visa applicant’s occupation as “Gynaecologist (ANM & OT Technician)”.

    ·An approval of one-month’s leave to the visa applicant from her employer, the Sukhmani Hospital, dated 7 January 2020.

    ·Newspaper articles in which the visa applicant appears in her professional role.

    ·Photographs of the visa applicant working in her employment.

    ·The visa applicant’s bank account statement showing salary payments into her account.

    ·An affidavit by the visa applicant’s father stating he has three children, including the visa applicant, and that his properties are divided amongst them in equal shares.

    ·Valuation reports for the visa applicant’s father’s properties.

    ·National Identity Cards for the visa applicant’s parents, brother, and brother’s children.

    ·A Statutory Declaration by the review applicant stating that the visa applicant will abide by her visa conditions and depart Australia before the expiry of her visa.

    ·A statement of the moneys in the review applicant’s bank accounts, which total over one million dollars.

    Tribunal Hearing

11. The review applicant appeared before the Tribunal on 4 February 2020 to give evidence and present arguments. The following is a summary of the information he provided at the hearing:

    a.He and his wife are both from Punjab and are of the Sikh religion.

    b.His wife would like to visit Australia for 10 to 15 days to celebrate their wedding anniversary and her birthday.  They will then travel together to other countries for a holiday together. They plan to visit New Zealand, Fiji, Singapore and Thailand then travel to India together. He will spend about 15 days with his wife in India before returning to Australia.

    c.He has visited India about ten times since they married.  They spend time together there.  He can submit photographs showing them together during his visits to India.

    d.His wife resides in his house in India. It is a family home.  When his father died he gave the house to the review applicant and his brother.  They have separate sections of the home.  The applicant’s brother and his wife live in his brother’s section and the review applicant’s wife lives in the review applicant’s section.

    e.The visa applicant’s parents and a brother also live in Punjab. The visa applicant helps her parents on their farm from time to time.  

    f.The review applicant has an elder brother who lives in India and a younger brother who lives in the USA. They have not visited Australia. The review applicant wants them to visit but so far they have only gone to the USA because his elder brother’s two daughters also live in the USA.  He would like his brothers and their families to visit him in Australia in the future.  His niece visited Australia in 2006.

    g.The review applicant has made his wealth from his hire car business and his investment in shares.  He would be able to provide a security bond for his wife’s visit to Australia. If he loses a large sum of money it would be difficult for him to realise his future investment plans. He wants to obtain an investment property for himself and his wife when she gets her permanent residence in Australia. They are also contemplating investing in a new hospital in India.

    h.The review applicant came to Australia in 1988.  He obtained permanent residence in Australia on a marriage visa. He was previously married in 1988 but the marriage ended in 2014. He met his current wife when he returned to India because his mother passed away.

    i.The review applicant has no family in Australia but he has good friends here. He has told them a lot about his wife but they have never met her. He very much wants his wife to be able to come here to visit so that his friends can meet her.  While she is here he will hold a party to celebrate so his friends and colleagues can meet her.

12. On 5 February 2020 the applicants submitted copies of the following documents to the Tribunal:

    -The visa applicant’s Government of India Identity Card, listing her address as her husband’s family home in Narang Gali, India.

    -Several photographs of the visa applicant and the review applicant together in India.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. In a related review application[1] by the applicants the Tribunal took evidence regarding their relationship.  The applicants submitted detailed and comprehensive information so that the Tribunal is satisfied that they are in a genuine spouse relationship.

    [1] AAT Case Number 1917198

14. 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.

15. In the present case, the visa applicant seeks the visa for the purposes of visiting her husband in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

16. 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)).

17. The visa applicant has not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by her.

18. 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.

19. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The Tribunal accepts that the visa applicant has personal savings and sufficient funds to support herself during a visit to Australia. There is no indication before the Tribunal that the visa applicant intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied she intends to comply with condition 8101.

20. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

21. Condition 8503 refers to entitlement and is not a condition that involves compliance.

22. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

1. The Tribunal notes that the Department’s reasons for refusing a Visitor visa to the visa applicant include reference to three previous visa applications that she had not disclosed in her application, namely for two maritime crew visas and a visitor (business) visa in 2014.  Given the wrong and random information in the three applications and the lack of any perceivable reason for the visa applicant to lodge such visa applications, the Tribunal accepts that these applications were made by someone other than the visa applicant and that she had no knowledge of them.

2. The Tribunal accepts that the visa applicant is a married woman from Punjab in India. The Tribunal accepts the visa applicant’s parents, brother and brother’s family also reside in Punjab. The Tribunal considers that the presence of the visa applicant’s close family members in India represents significant incentive for her to return there after a short stay in Australia.

3. The Tribunal accepts that the visa applicant has stable and valued work as a gynaecological nurse at a hospital in Zira, and that her work includes an outreach program.  The Tribunal accepts that the visa applicant would be motivated to return to such work after a short stay in Australia.

4. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to his family and relatives’ immigration compliance in Australia. 

5. The Tribunal notes the review applicant’s wish to sponsor other family members, such as his brother, to visit Australia in the future.  The Tribunal considers this further motivation for him to ensure that the visa applicant does not breach any of her visa conditions and that she departs Australia before the expiry of her visa. 

6. The Tribunal accepts that the applicants are awaiting the outcome of their partner visa application and that this provides strong incentive for the visa applicant to comply with all her visa conditions in Australia.  The Tribunal accepts that if a partner visa is granted the visa applicant would then need to be in India to make the extensive arrangements necessary for her to migrate to Australia.  The Tribunal considers this further incentive for the visa applicant to return to India after visiting Australia.

7. In sum the evidence before the Tribunal supports the applicants’ contention that the visa applicant wishes to visit Australia for a short period and then depart.

8. 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

9. 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.

   Melissa McAdam
   Member