GILL (Migration)

[2018] AATA 874

GILL (Migration) [2018] AATA 874 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss BALJINDER GILL

VISA APPLICANT:  Mr PARWINDER SINGH

CASE NUMBER:  1701656

DIBP REFERENCE(S):  N16/12035552

MEMBER:Ian Berry

DATE:28 March 2018

PLACE OF DECISION:  Brisbane

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 28 March 2018 at 2:49pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Tourist stream – First visits to Australia to visit sister –Tribunal sought further information – Applicants did not comply with the timeframe – Application determined “on the papers” – Reasonable financial position – Satisfied the applicant will comply with visa conditions

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

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 22 December 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 9 December 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 visa applicant has not demonstrated a genuine intent to stay temporarily in Australia for the purpose which the visa was granted, that is, a family visit.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister, the review applicant. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

8. 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)).

9. The visa applicant has not visited Australia on any occasion. Therefore, it is not possible to be satisfied as to whether he will return based on his visa history.

10. The visa applicant provided further information that was not presented to the delegate.

11. The Tribunal sent a s.359(2) letter to the applicants, which resulted in the Tribunal receiving further information, but as applicants did not comply within the time required by that letter, this application did not proceed to a hearing, but determined “on the papers”.

12. The further information from the applicants and material to this application for review, comprised of:

    a.Letter from the visa appliant’s employer;

    b.Current bank statements of the mother’s account;

    c.Matriculation Examination results from the Punjab School Education Board concerning the visa applicant.

13. The visa applicant’s mother has strongly argued that the only purpose is for her son to visit his sister in Australia. That it is a genuine visit and the visa applicant will abide by any and all conditions determined by the Department.

14. The visa applicant has secured a position with Gee & Gee International – “School of IELTS, spoken English and computer education”. This position was taken up on 1 March 2017. He continues to be an agriculturalist, which presumably is a share farmer arrangement. His employer says that he is a valuable employee and earns an income of RS 20,000 per month.

15. The review applicant and the applicants’ mother is in a reasonable financial position. At 5 September 2017, the mother Mrs Jaswant Kaur’s bank account had a balance of RS 480,00.

16. The bank statement corroborates the employment of the visa applicant. Into his mother’s bank account, the employer made a deposit of RS 20,000 on 15 April 2017.

17. Both the review applicant and the mother have committed to assisting in financially assisting the visa applicant should it be necessary.

18. The Tribunal is satisfied the visa applicant is intent to genuinely abide by the visitor visa should be approved. It is an appropriate course for conditions to apply.

19. 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(2)):

    ·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.

20. The Tribunal is satisfied that the visa applicant will comply with the conditions as compliance is consistent with the intent to genuinely stay temporarily for the purpose of the Tourist visa.

21. 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

22. 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.

    Ian Berry
    Member