Kaur (Migration)

[2022] AATA 3167

Kaur (Migration) [2022] AATA 3167 (15 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Manjit Kaur

CASE NUMBER:  2205279

HOME AFFAIRS REFERENCE(S):          BCC2020/1709707

MEMBER:Anne Grant

DATE:15 September 2022

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 September 2022 at 3:34pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – migration history – several previous compliant visits – health, COVID travel restrictions, delay in processing visa application and previous review – house and most family members in home country – intention to avoid unfavourable visa record for future applications – 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 Home Affairs on 21 March 2022 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 June 2020. 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 because they were not satisfied that she had a genuine intention to remain temporarily in Australia.  

5. The applicant appeared before the Tribunal on 14 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from her son, Davinderjit Singh. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 and staying with her son who was caring for her after she suffered a stroke.  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. According to the information before the Tribunal, the applicant has travelled to and from Australia on several occasions since 2014, and on every occasion has complied with the conditions of her visa.  At hearing, the applicant and her son confirmed this to be the case. The applicant has complied with the conditions of the last substantive visa held and her subsequent bridging visa.  The Tribunal considers that the visa applicant’s good visa compliance history should be given substantial weight in this case as it indicates a past history of travelling to and from India to visit her son and staying as permitted on her visitor visa on each occasion. 

11. 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(3)):

    ·8101 – must not work in Australia

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

12. The evidence before the Tribunal reflects that the applicant has no intention of working or studying in Australia.  She is visiting her son, who meets her living costs whilst she is in Australia.

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

14. In a written submission, the applicant’s son made the following points:

    ·     The applicant suffered a stroke in Australia in December 2019 and at the time her old visa was coming to an end, she was unable to travel – plus the pandemic had closed borders and made travel unsafe.  That was why they applied for a new visitor visa in June 2020.  The time that has passed since then has been caused by delays in processing the visa, the review of the first refusal and also, of course the ongoing pandemic.

    ·     The visa applicant has never breached any visa conditions and has no intention of ever doing so.

    ·     The visa applicant has visited several times as it is his duty to look after her since his father died in 2014.  She spends time with him in Australia and time with her daughter in India. 

    ·     The reason for seeking a review of the decision is because they do not want the applicant to have a ‘black spot’ against her migration record, which could potentially mean she could not visit him in the future.   They were delayed getting the character check documents due to the impact of the pandemic and they don’t want the applicant’s future travel impacted by this unfortunate recent confusion.

    ·     The applicant has a house in India and also a daughter there.  Her reason for the delayed travel home as because of her illness and then covid and the refusal of the visitor visa and reviews.

15. The applicant confirmed at hearing that she is mostly recovered from the stroke, though her blood pressure fluctuates and she finds her legs get very heavy sometimes.  She is able to walk without assistance. She is no longer ‘unfit’ to travel, as she was in 2020. The applicant also confirmed that she has a home in India which has been closed up since she has been in Australia. However, she said her daughter checks on it regularly.  The applicant owns the home and it has no mortgage.  

16. The applicant gave evidence that she does not receive a pension in India, and that her son financially supports her, whether she is in Australia or in India. The visa applicant has only two children, her son in Australia and her daughter in India.  Both are married and have two children each. The applicant spoke fondly of her grandchildren and confirmed that when in India, she sees her daughter and grandchildren regularly as they live quite close by.  The applicant also gave evidence that she has one sister who lives near her, and two brothers who live in Delhi.  She said she sees her sister often when she is home.  Some of her nephews (her husband’s brother’s sons) also live in Australia.  Therefore, the applicant has significant family in both India and Australia.

17. The visa applicant gave evidence that she would comply with the conditions of any visa granted, as she always has. She would depart Australia as required.  The applicant frankly said she would like to stay in Australia with her son permanently, but knows that she cannot do so on a visitor visa. Her son noted that the only reason the applicant had been in Australia since 2019 was due to the stroke and then the pandemic and the ongoing reviews of her visa.  He wanted to make sure that she did not have any black marks against her visa history so that she can continue to travel to and from India to visit him, as she has historically done.  The visa applicant agreed, saying that her hope is that she will be able to travel just like she used to before 2019 – visiting her son, staying for a while and then returning home.   

18. The Tribunal can understand the concerns held by the delegate about the applicant’s genuine intention to stay temporarily in Australia, given the passage of time since she had applied for the visa and her continuing presence in Australia at the time of delegate’s decision.  However, it is noted that the delegate had not had an opportunity to discuss her intentions with the applicant, and appears to have given no consideration to the delays and disruption to normal migration conduct caused by the pandemic, or the applicant’s illness in early 2020.  The Tribunal has had the benefit of both written submissions and the direct evidence given by the applicant and her son, discussed above.

19. The applicant’s movement history and evidence strongly suggest that she hopes to and would travel to and from Australia to visit her son and his family in the future, as she has done in the past.  The Tribunal considers, as noted above, that the applicant’s past conduct should be given significant weight towards establishing her genuine intention to remain temporarily in Australia. 

20. The visa applicant has close family in both India and Australia, which provides her with an incentive to spend time in both countries and is consistent with her evidence that she wants to be able to continue her previous practice of travelling regularly to Australia to see her son and his family, before returning home.  The presence of her daughter, two grandchildren and sister close to her home in India do provide the applicant with a significant incentive to return to India after a visit to Australia. The applicant has an established home in India and is financially supported by her son, whether she lives in India or in Australia.  However, consideration of her financial circumstances does not assist in assessing her genuine intention to stay temporarily in Australia, because the applicant has stable accommodation and income in both countries.

21. Whilst the applicant acknowledged that she would like to stay in Australia if she were able to do so, she clearly expressed that she intends to remain here temporarily in accord with any visa requirements; that she understood the restrictions of a temporary visa and would abide by the conditions of a visitor visa if granted, including by departing as required.  The fact that the applicant would like to stay in Australia if granted a permanent visa does not mean that, at the time she applied for the visa and at the time of this decision, she intended to remain in Australia permanently.  Similarly, the circumstances of this case do not suggest that the applicant is trying to bypass temporary stay requirements.  In fact, it is noted that she applied for the visa before her previous substantive visa ceased, at a time of global migration uncertainty and when she personally faced significant health problems which disrupted her usual travel patterns. 

22. After considering the applicant’s history and the various factors discussed above, the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes for which the visa is granted.  The Tribunal finds that the requirements of cl 600.211 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.

    Anne Grant
    Member