Kataria (Migration)

[2021] AATA 5445

Kataria (Migration) [2021] AATA 5445 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ankush Kataria

VISA APPLICANT:  Mrs Monika Devi Monika Devi

CASE NUMBER:  2000470

HOME AFFAIRS REFERENCE(S):          BCC2019/6565343

MEMBER:Mark Bishop

DATE:15 December 2021

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 15 December 2021 at 10:13am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – tourist stream – visiting family – the visa applicant genuinely intends to stay temporarily in Australia – strong incentives to depart Australia – family and work commitment in home country –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 Home Affairs on 23 December 2019 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 9 December 2019. 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.

5. The Review Applicant (RA) is Mr Ankush Kataria. The Visa Applicant (VA) is Mrs Monika Devi Monika Devi. The RA appeared before the Tribunal on 15 Dec 2021 to give evidence and present arguments. The VA did not appear before the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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)).

10. 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:

    ·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.

11. An application for a Visitor (Tourist) visa in the Tourist stream has been made by the applicant.

12. Clause 600.211 of the Migration Regulations provides as follows:

    600.211

    The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

    a) 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; and

    (b) whether the applicant intends to comply with the conditions to which the Subclass 600

    visa would be subject; and

    (c) any other relevant matter.

13. In assessing whether or not the applicant genuinely intends to stay temporarily in Australia, the Tribunal is required to take into account information provided in the application, the applicant's immigration history and compliance with previous visas. The Tribunal has also taken into consideration any supporting documents as well as the applicant's personal circumstances, commitments, and incentive to return to their country of residence.

14. The delegate outlined in some detail relevant policy considerations that would guide his decision-making.

15. The delegate made the following findings:

    My decision is based on the following factors

    ·From the information provided in the application and supporting documents, I note that the applicant has claimed to be employed at Mahindra Hospital and intends to travel to Australia for a family visit.

    ·When considering whether you intend a genuine temporary stay, factors for consideration are:

    othe personal circumstances which would encourage you to return to your country of usual residence at the end of your proposed visit, and

    othe personal circumstances or general conditions in your home country than might encourage you to remain in Australia.

    oevidence of previous compliant travel outside your usual country of residence

    ·In support of the application the applicant has provided letter from the employer, inviter’s documents and identity documents among other documents.

    ·I have considered all information provided by the applicant in support of the application and relevant information held by the Department. In assessing the information provided, I have considered her purpose of travel to Australia.

    ·From the information provided in the application, whilst I accept that the applicant is currently employed as claimed and I give some positive weight to her ongoing employment, however considering the level of income as indicated from the letter from the employer provided by the applicant her claimed income cannot be considered significant in the context of the likely costs of a temporary stay in Australia, or be considered a strong incentive to return after a visit to Australia.

    ·I find that the applicant has not demonstrated strong personal, financial or economic ties in her country of usual residence which may be considered as a strong incentive to return necessary to induce a genuine visit.

    ·I have taken into account the level of support provided by the inviter; however my assessment of these facts leads me to the conclusion that her incentives to remain in Australia outweigh those to return to India.

    Decision

    ·As clause 600.211 is not satisfied, I find the criteria for the grant of a Visitor (Tourist) visa in the Tourist stream are not satisfied. Therefore, I refuse the application by the applicant for a Visitor (Tourist) visa in the Tourist stream.

16. In evidence to the Tribunal the RA  advised as follows:

    ·The RA and his wife are both Australian citizens and have lived in Australia for 15 years. Both work and study in Qld in responsible positions. The RA will shortly start with the Qld police services. He is qualified a to Master level in international business and formerly owned his own business.

    ·The VA is his sister, she resides in India in the Punjab region with her husband. The VA does not have any children. She is a staff nurse (Australian equivalent RN) and receives a good salary.

    ·At the time of the delegate’s decision the VA’s husband lived and worked in New Zealand but is now domiciled in India.

    ·The VA comes from a comfortably well-off/wealthy family in India. Her husband’s family own agricultural land and other assets that provide good rents and income.

    ·The VA is employed in a senior position as a staff nurse in a major hospital in India.

    ·The VA has not travelled outside India. The VA was raised in a predominantly English speaking region and speaks English well.

    ·At the time of the delegate’s decision the VA wished to visit Australia to assist her sister-in-law who was having some complications with the birth of her second child. The RA and his wife have now established satisfactory childcare arrangements for their two daughters. The VA now wishes to visit Australia to see her family in Qld.

    ·It is not convenient for the RA and his wife to visit India as both have responsible full time jobs, are engaged in study at Master level and are wary of problems related to Covid-19 in India.

17. Under Departmental policy when considering “any other relevant matter”, decision makers may take into account a wide range of considerations to determine whether an applicant genuinely intends a temporary stay in Australia. This may include, but is not limited to, the applicant’s employment, economic and family circumstances, their credibility, the claimed purpose and period of stay, and the applicant’s previous travel history. The Tribunal is not bound by Departmental policy and brings an independent mind to these review proceedings.

18. The VA has her own family and that of her husband in close proximity in India. The VA lives with her husband’s family and is employed in a senior position in the nursing industry in India. As is customary in India the assets of the VA are held in the family of her father-in-law. These assets are significant and in due course will pass to the husband of the VA. The VA has extensive family in India. The VA has travelled extensively in India but not outside India.

19. The VA wishes to visit Australia to see her brother and her brother’s family in Queensland. She has not seen her Australian based family for 4 years.

20. The Tribunal is satisfied the VA has her own family in India, her immediate family in India, responsible employment in  India, assets and income in India and the support of her family and that of her in-laws in India. All of these matters individually but more critically in aggregate point to a well established life in India that is an incentive to return to the home country. There is little current evidenced before the Tribunal that suggests the VA will not adhere to visa conditions if she should visit Australia.

21. In assessing the relevant criteria the Tribunal has taken into account the information provided in the visa application form, the supporting documents provided, the decision record and the evidence of the RA. The Tribunal finds that the information provided is  sufficient to satisfy the Tribunal of the applicant’s genuine temporary stay intention, and the applicant has demonstrated sufficiently strong commitments in India that would be an incentive to return to India.

22. For the above reasons the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and finds that the requirements of cl 602.211 are met.

    DECISION

23. 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.

    Mark Bishop

    Member