Ifath (Migration)

[2018] AATA 1187

Ifath (Migration) [2018] AATA 1187 (14 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mrs Shabreen Ifath
Mrs Nasiha Zahrah
Ms Ayra Zaman
Ms Hibaa Zaman

VISA APPLICANT:  Mr Kaif Ahamed Uz Zaman

CASE NUMBER:  1712093

DIBP REFERENCE(S):  cld2017/2665639

MEMBER:Tania Flood

DATE:14 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application of the first named applicant 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.

The Tribunal does not have jurisdiction in relation to the second, third and fourth named applicants.

Statement made on 14 March 2018 at 2:56pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Whether the applicant genuinely intends to visit Australia temporarily – Significant ties to home country – Applicant owns and operates business in home country – Significant family ties in home country

LEGISLATION
Migration Act 1958, ss 7(b), 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, Schedule 8, Conditions 8101, 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 19 April 2017 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 15 March 2017. 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 visa was refused on the basis that the visa applicant did not meet cl.600.211 because the Delegate was not satisfied the applicant genuinely intends to visit Australia temporarily.  

5. The review applicant appeared before the Tribunal on 8 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas.

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

   BACKGROUND

7. The first named visa applicant was born on 6 July 1974 in Bangalore, India.  He is married with two daughters.  He is self-employed.

8. The visa applicant is the review applicant’s sister. She is married and works as a full-time Recruitment Coordinator at Westmead Hospital.

   TRIBUNAL HEARING

9. The review and visa applicants provided consistent and credible evidence to the Tribunal which is summarised below:

10. The review applicant came to Australia on a Partner Provisional visa and remains married.  She has two children aged nine and four.  Her husband is an Australian citizen having migrated to Australia as a skilled migrant.  Both she and her husband are in full-time employment. 

11. The review and visa applicant have no other family in Australia although their mother and father have previously visited Australia.   Currently mother is in India where she resides with the visa applicant and his wife and two daughters.  Their mother is in good health and does not work.  Their father is now deceased.  They have no other siblings.

12. The review and visa applicants are both Muslim and they have not experienced any problems living in Bangalore for this reason.  The review applicant visited the area in January 2018 with her family and had no hesitation in doing so on account of her religion.

13. The visa applicant runs his own human resources business.  He has run the business for about ten years and employs staff, maintains a lease and has an annual turnover. 

14. The visa applicant owns the property that he and his family are living in.  He has no other major assets in India apart from some bank savings.

15. The visa applicant has only ever travelled to Thailand for a business conference.  He required and was granted a visa to visit Thailand.  He has not applied to visit any other countries apart from Australia.

16. The review and visa applicants understand that the Tribunal has no jurisdiction to review the applications of his wife and children to visit Australia.  The visa applicant would still like to visit his sister and her family in Australia even if that means he is unable to travel with his family.  He proposes to visit Australia for one month as that is the maximum time he can be away from his business and his family who will remain behind in India.

17. The visa applicant is able to finance his own travel to Australia and his sister will assist him with living expenses including accommodation for the duration of the visit.

18. The visa applicant is not involved with any political groups in India and has no problems in India which would cause him not to return home at the end of his visit to Australia.

19. The review applicant is willing and able to pay a reasonable security deposit in order to facilitate the grant of the visa.   

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. Only the first named applicant has standing in the review because the original Visitor visa applications were lodged in the Tourist steam. Sub-section 7(b) of the Migration Act states that ‘a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen’. The first named applicant is the review applicant’s brother while the second, third and fourth named applicants are the review applicant’s sister-in-law and nieces. Therefore, only the first named applicant can be considered in this review. This was discussed with the review applicant at hearing.

21. 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.

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

23. 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)).

24. The review applicant first arrived in Australia on 11 April 2005 as the holder of a Partner Provisional visa.  On 25 September 2006 she was granted a Partner visa.  She remains in Australia permanently as the holder of a Five Year Resident Return visa.

25. The review applicant’s husband first entered Australia on 21 March 2003 as the holder of a Skilled Independent visa.  He obtained Australia citizenship on 4 December 2006.

26. The review applicant’s mother has visited Australia three times as the holder of a Visitor visa.  Each time she departed Australia when her visa ceased.

27. The review applicant’s father once visited Australia in 2008 as the holder of a Visitor visa.  He departed Australia when his visa ceased.

28. The review applicant’s aunt recently visited Australia in 2017 as the holder of a Visitor visa.  She also departed Australia before her visa ceased.

29. The visa applicant has never visited Australia.

30. There is no adverse family migration history to consider.

31. 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.

32. The review applicant is proposing a short visit to Australia to spend time with his sister and her family.  The evidence before the Tribunal supports that he is a business owner in India and that he has operated his business for a number of years.  The review applicant and her husband are both in full time employment and will provide the visa applicant with accommodation for the duration of the proposed visit.  In the circumstances the Tribunal is satisfied that the visa applicant will not work or engage in study or training in Australia if he is granted a Visitor visa.  The Tribunal is satisfied that the visa applicant will comply with conditions 8101 and 8201 if he is granted a Visitor visa.

33. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

34. The first named applicant had intended to travel to Australia with his wife and children, however, as noted above, the Tribunal only has jurisdiction to consider the review application of the first named applicant.  There is nothing before the Tribunal to indicate that the visa applicant’s wife and two children are in receipt of a visa which would allow them entry to Australia at the time of this decision or that they will secure a visa in the foreseeable future.  Therefore the Tribunal considers the presence of these remaining family members, and his widowed mother who currently resides with them in India, during his visit, to be a strong incentive for him to return home at the end of the visit.

35. The available evidence supports the review and visa applicant’s claims that the visa applicant has built up his own human resources business in India over a period of ten years.  The visa applicant has produced evidence of his business dealings including income tax records for the business.  The Tribunal considers the visa applicant has made a considerable investment in the development of this business and that its ongoing operations will also act as an incentive for him to return to India at the end of his visit.

36. The Tribunal acknowledges the visa applicant is a Muslim in an otherwise majority Hindu state.  The Tribunal also acknowledges that instances of communal tension involving Muslims in India are reported and the broader Muslim community in India continues to have a lower socio-economic status than the general population.[1]  However, the visa applicant holds a Master Degree and is a business owner.  Further, the evidence of the review and visa applicants’ is that there is a sizeable Muslim population in Bangalore and that they have not experienced problems living there for reason of their religion.  The Tribunal has also placed weight on the fact the review applicant returned to the area in January 2018 with her husband and two young children and encountered no problems in the five weeks she spent there on account of their religion. 

    [1] DFAT Country Information Report, India, 15 July 2015

37. The Tribunal has also accorded weight to the family’s positive migration record which is outlined above. 

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

39. For the above reasons the Tribunal is satisfied that the first named 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

40. 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.

    Tania Flood
    Member