Kohli (Migration)

Kohli (Migration) [2019] AATA 6432 (7 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Bhaoleen Kaur Kohli
VISA APPLICANT:  Ms Tejinder Kaur
CASE NUMBER:  1828116
HOME AFFAIRS REFERENCE(S):          BCC2018/2818078
MEMBER:Susan Trotter
DATE AND TIME OF ORAL DECISION:   25 October 2019 at 11:52 am (Qld time)
DATE OF WRITTEN REASONS:              7 November 2019
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.
·PIC 4014 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 7 November 2019 at 6:11pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – three year exclusion period – applicant departed Australia as an unlawful non-citizen – Bridging visa not granted with permanent visa application – compassionate or compelling circumstances – family medical issues – impact on review applicant’s professional commitments in regional Australia – newborn child – substantial compliance – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.213, 600.231; Schedule 4 Public Interest Criterion 4014
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 August 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
At the hearing on 25 October 2019, the Tribunal made an oral decision. The following is the statement of written reasons for that decision.
STATEMENT OF DECISION AND REASONS
The visa applicant, a 64 year-old citizen of India, applied for the visa on 27 July 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 visa applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.
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.
The delegate refused to grant the visa on the basis that the visa applicant did not meet Public Interest Criterion (PIC) 4014 for the purposes of cl.600.213 of Schedule 2 to the Regulations. In particular, the delegate found that the visa applicant was subject to a PIC 4014 exclusion period for three years following the date of her departure from Australia on 7 March 2018 as she departed on a Bridging visa E after not having held a substantive visa for more than 28 days.
The review applicant, the visa applicant’s daughter, lodged an application with the Tribunal on 25 September 2018.
The review applicant appeared before the Tribunal on 25 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr Harmandeep Singh. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal delivered an oral decision at hearing remitting the matter for reconsideration.
ISSUES
Relevantly the criteria for grant of a Subclass 600 visa include cl.600.213 and cl.600.211 of Schedule 2 to the Regulation.
Risk factor and waiver considerations - PIC 4014 for the purposes of cl.600.213
Clause 600.213 requires the visa applicant to satisfy a number of different public interest criteria, including relevantly PIC 4014, which provides as follows:
4014
(1) If the applicant is affected by the risk factor specified in subclause (4):
(a)the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or
(b)the Minister is satisfied that, in the particular case:
(i)        compelling circumstances that affect the interests of Australia; or
(ii)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa within 3 years after the departure.
(4) Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:
(a)an unlawful non-citizen; or
(b)the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.
(5) Subclause (4) does not to apply to a person if:
(a)the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect; or
(b)a bridging visa held by the person at the time of departure was granted:
(i)        within 28 days after a substantive visa held by the person ceased to be in effect; or
(ii)       while the person held another bridging visa granted:
(A)      while the person held a substantive visa; or
(B)      within 28 days after a substantive visa held by the person ceased to be in effect.
Broadly speaking, PIC 4014 defines particular circumstances where an applicant is affected by a relevant ‘risk factor’. The defined ‘risk factors’ in PIC 4014 include circumstances where an applicant has previously departed Australia as an unlawful non-citizen or as the holder of a Bridging C, Bridging D or Bridging E visa, except where limited specified circumstances are met: PIC 4014(4) and (5).
Where an applicant is affected by a ‘risk factor’ as set out in PIC 4014(4), he or she is required to satisfy one of two alternate criteria set out in PIC 4014(1) to meet PIC 4014 as a whole.
PIC 4014(1)(a) requires that the application has been made more than three years after the date of the relevant departure from Australia.
Alternatively, PIC 4014(1)(b) requires that the decision maker is satisfied that, in the particular case, compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, justify granting the visa within three years after the departure.
Genuineness Criteria – cl.600.211
Clause 600.211 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.
In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the stated purpose, cl.600.211(a) requires consideration of whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa.
Clause 600.211(b) also requires consideration of whether a visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The mandatory 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 three months;
·     8503 – not entitled to be granted a substantive visa, other than a protection visa, while remaining in Australia;
·     8531 – must not remain in Australia after end of permitted stay.
Clause 600.211(c) requires that consideration also be given to any other relevant matters. Departmental policy states that relevant consideration of any other matter may include, but is not limited to:
·Personal circumstances
·Credibility
·Purpose and period of stay
·Previous immigration/travel history
·Intel reports and profile.
Personal circumstances
Namely:
·the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:
o   ongoing employment
o   the presence of close family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia
o   property, or other significant assets, owned in their home country and
o   whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance
and
·the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:
o   economic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia
o   economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.
o   the applicant’s personal ties to Australia, that is:
o military service commitments
o civil disruption, including war, lawlessness or political upheaval in the applicant’s home country.
Note: If refusing a visitor visa in relation to the genuine temporary stay criterion, s65 delegates must take care not to confuse the applicant’s financial circumstances as an incentive to return and the applicant’s access to ‘adequate means of support’. They are separate factors and so must be considered separately.
Credibility
The applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application).
Purpose and period of stay
Whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with “tourism”).
Previous immigration/travel history
Previous immigration and travel history, such as:
·previous visa applications for Australia
·previous overseas travel, that is, has the applicant travelled to countries other than Australia.
In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.
Intel reports and profiles
Information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department about nationals from the applicant’s home country. (Note: Even though they are still mentioned on various visitor visa application forms, Modified Non Return Rate (MNRR) statistics should not be used because no quarterly MNRR report has been published on the department’s website since June 2013.)
Officers may request further evidence from the applicant, if considered appropriate, if departmental statistical or intelligence reports on migration fraud, or profiles based on such reports, indicate that there is a significantly greater likelihood of nationals from the applicant’s home country:
·staying in Australia beyond the stay period of their visa or
·having their visa cancelled or
·being refused entry to Australia or
·making asylum claims or applying for a protection visa.
Note: The mere fact that an applicant matches the characteristics of a profile is not grounds to refuse to grant a visa. Profiles are merely an alert that closer scrutiny of the applicant’s circumstances might be required. All applications must be considered on their own merits taking into account all the information and supporting documentation provided by the applicant.
In the present case, the visa applicant seeks the visa for the purposes of visiting her daughter, her husband and their children, all of whom are Australian citizens. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.
It follows that the issues to be determined by the Tribunal are:
(a) Is the visa applicant affected by a risk factor for the purposes of PIC 4014? And, if so,
(b) Was the visa application made more than three years after the visa applicant’s departure from Australia: PIC 4014(1)(a)? And, if not,
(c) Are there compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen that justify granting the visa within three years after the departure?
and
(d) Does the visa applicant intend to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(i)Has the visa applicant complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa?
(ii)Does the visa applicant intend to comply with the conditions to which the visa would be subject? And
(iii)Are there any other relevant matters?
CONSIDERATION
Issue 1 - Is the visa applicant affected by a risk factor for the purposes of PIC 4014?
The evidence and submissions before the Tribunal, including the review applicant’s evidence at hearing, included the following history of the visa applicant and her previous time spent in Australia:
(a) The visa applicant has travelled to and departed from Australia on five occasions since 2011.
(b) The visa applicant applied onshore for a Contributory Parent visa on 8 September 2017.
(c)   The review applicant and visa applicant understood that the visa applicant would be granted a Bridging visa when she applied onshore for the Contributory Parent visa.
(d) When the review applicant’s husband contract the call centre staff of the Department on 18 September 2017, he was advised that the visa applicant would be granted a bridging visa. However, they have since learned that applicants for a Contributory Parent visa are not eligible for a bridging visa even if the visa is lodged onshore.
(e) Acknowledgement of receipt of the Contributory Parent visa application was not received until 19 October 2017, more than one month after it was lodged. As no email was received regarding a bridging visa for the visa applicant, the review applicant sent an email to the Department on 16 November 2017 querying the bridging visa. No response was received to this email. Further attempts to make contact with the Department, including by phone and in person, about this issue (in December 2017 and January 2018) were not successful. It was not until 13 February 2018 that they received an email from the Department advising that no bridging was available to the visa applicant corresponding to her Contributory Parent visa application. They also then received a telephone call advising that the visa applicant was living unlawfully in Australia and they immediately visited the Department and the visa applicant was granted a Bridging visa E. Even though the visa applicant was then aware of the review applicant’s pregnancy and wanted to remain to assist her and meet her new grandchild, given her visa status, she departed Australia and reapplied offshore for the visitor visa the subject of this application.
(f)    The visa applicant has been visiting Australia, and also the United States of America where another daughter lives, for several years and has never breached her visa conditions.
(g) The review applicant’s daughter has now been born following a difficult pregnancy. However, the review applicant is still struggling following the birth, including because of diagnosed depression, issues arising with her work as a dentist running her own practice in regional Queensland and recent difficulties following her husband sustaining a broken leg, which required surgery, and from which he is still recovering.
(h) The visa applicant would like to visit Australia to assist her daughter at this difficult time as she struggles with a young baby, her older daughter and a husband who is recovering after surgery.
(i)    It is not only the review applicant and her family that is impacted but also the patients under the review applicant’s care because of her being unable to perform clinical duties as she is the only one able to care for her husband while he recovers from surgery. The visa applicant will be able to assist in that care, freeing up the review applicant for her work, until her husband recovers.
(j)    Although the visa applicant has applied for the Contributory Parent visa, and expects there may still be a three year wait or more in relation to that visa, she still has incentive to return to India, including the presence of her own mother, three sisters and brother there, and intends to continue to do so, when not visiting one of her daughters, in Australia or the United States of America, as she has done for the past several years.
The Tribunal finds that the visa applicant last departed Australia on 7 March 2018 as the holder of Bridging E (Class WE) visa. She is therefore affected by a risk factor pursuant to cl.600.213(4) unless one of the exceptions provided for in cl.600.213(5) applies.
The visa applicant did not leave Australia within 28 days after a substantive visa held by her ceased to be in effect as the last substantive visa held by her, a Subclass 600 visa, ceased to be in effect on 3 October 2017 which is more than 28 days prior to her departure on 7 March 2018. Clause 600.213(5)(a) therefore does not apply.
The Bridging E (Class WE) visa held by the visa applicant at the time of departure on 7 March 2018 was granted on 15 February 2018, which was not within 28 days after the substantive visa held by her ceased on 3 October 2017. Clause 600.213(5)(b)(i) therefore does not apply.
The Bridging E (Class WE) visa held by the visa applicant at the time of departure on 7 March 2018 was not granted while the visa applicant held another bridging visa granted while she held a substantive visa. Clause 600.213(5)(b)(ii)(A) therefore does not apply.
The Bridging E (Class WE) visa held by the visa applicant at the time of departure on 7 March 2018 was not granted while the visa applicant held another bridging visa granted within 28 days after the substantive visa held by her ceased on 3 October 2017. Clause 600.213(5)(b)(ii)(B) therefore does not apply.
It follows that none of the exceptions in PIC 4014(5) apply to the visa applicant. The visa applicant is therefore affected by the risk factor in PIC 4014(4).
Issue 2 - Was the visa application made more than three years after the visa applicant’s departure from Australia: PIC 4014(1)(a)?
The visa applicant last departed Australia on 7 March 2018 and applied for the visa which is the subject of this review on 27 July 2018, less than three years after her last departure from Australia.
The visa applicant therefore does not meet PIC 4014(1)(a).
Issue 3 - Are there compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen that justify granting the visa within three years after the departure?
The terms 'compelling' and ‘compassionate’ are not defined in the legislation. The ordinary dictionary definitions of these words state that ‘compelling’ means ‘to force or drive, especially to a course of action’ or to ‘bring about moral necessity’ and that ‘compassionate’ means ‘circumstances that invoke sympathy or pity’.

The Tribunal considers that the language adopted in the Regulations of ‘compelling’ and ‘compassionate’ require a certain degree of gravity.
The evidence before the Tribunal includes medical certificates certifying as to the review applicant’s pregnancy and post-partum difficulties, including depression. The Tribunal notes that the visa application was originally lodged on 27 July 2018 when the review applicant was seven months pregnant with the intention that the visa applicant be able to visit Australia for the birth of the review applicant’s child/ the visa applicant’s grandchild. That time has now passed. However, a medical report dated 8 October 2019 confirms that the review applicant’s husband sustained a right tibial plateau fracture on 2 October 2019 which required surgery on 17 October 2019 and now requires a six week period of non-weight bearing recovery, during which period he will be unable to drive or work.
The Tribunal has considered all of the circumstances both individually and cumulatively, and in particular the current circumstances of the review applicant, an Australia citizen, a new mother experiencing difficulties in her career juggling the care of her Australian citizen husband (impacted by a significant leg injury) and two Australia citizen children. The Tribunal is satisfied that there are compassionate and compelling circumstances that affect the interests of Australian citizens, the review applicant, her husband and their daughters for the purposes of PIC 4014(1)(b), which justify the granting of the visa within three years after the departure of the visa applicant.
Accordingly, the Tribunal is satisfied that the visa applicant meets PIC 4014 for the purposes of cl.600.213.
Issue 4 - Does the visa applicant intend to stay temporarily in Australia for the purpose for which the visa is granted?
The visa applicant seeks the visa for the purposes of visiting her Australian citizen daughter, son-in-law and granddaughters. This is a purpose for which the visa may be granted: cl.600.231.
Has the visa applicant complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa?
Movement records available to the Tribunal indicate that the visa applicant has been to Australia on five previous occasions since 2011 and that, except in relation to the final occasion, the circumstances of which have been canvassed earlier in these Reasons, she has been compliant with the relevant conditions of the visas she held and departed before expiry of each visa. The Tribunal accepts all of the matters submitted in relation to the visa applicant’s final visit including the misunderstanding, however formed, that the visa applicant would be granted a bridging visa in September 2017 when she lodged a Contributory Parent visa application. Notably once the visa applicant became aware of these issues, and was granted a Bridging visa E on 15 February 2018, she promptly departed Australia on 7 March 2018 as required, notwithstanding that this would have been at a time that she was aware of the review applicant’s pregnancy and would have felt some compulsion to remain in Australia on that basis. In the circumstances, although not strictly compliant, the Tribunal considers that the visa applicant has substantially complied with the conditions of the last substantive visa and subsequent bridging visa held by her.
The Tribunal places considerable weight on the visa applicant’s substantial compliance, including in relation to her departure from Australia as required on 7 March 2018.
Does the visa applicant intend to comply with the conditions to which the visa would be subject?
and
Are there any other relevant matters?
The question as to whether the visa applicant intends to comply with the conditions to which the visa would be subject necessarily also requires consideration of any other relevant matters.
Excepting the last visit to Australia, the Tribunal finds the visa applicant has on all previous visits complied with the conditions to which the various visas held were subject. The Tribunal considers this past behaviour a strong indicator of the visa applicant’s future intentions and behaviour. The Tribunal considers the visa applicant’s actions on her last visit have no bearing on what she will do in the future, and rather arose because of a genuine misunderstanding of her immigration status.
The Tribunal is satisfied that the visa applicant, while having significant reasons to remain in Australia, also has significant ties to India and the United States of America such that she will continue to depart Australia as required pending the processing of the Contributory Parent visa. Notably, Departmental policy supports that a person can have a genuine intention to remain permanently in Australia pursuant to a subsequent visa and yet hold a genuine intention to remain temporarily in relation to a visitor visa. Departmental policy in this regard includes as follows:
Intention to make a further application in Australia
If an applicant applies for a visitor visa but intends to make a further visa application in Australia (whether this intention is stated or not), this does not necessarily indicate that the applicant does not intend a genuine temporary stay and is not a reason in and of itself to refuse the visitor visa. If the Regulations allow an application to be made in Australia by an FA-600 visa holder in Australia, s65 delegates should not be seeking to block this pathway.
In addition, an intention to apply for a further visa in Australia does not necessarily indicate that the person will not leave Australia before the FA-600 visa ceases. The question to consider is not “will this person apply for a visa in Australia” but rather, “if this person does not apply for another visa in Australia, or if they apply and are refused, will they abide by the conditions of the visa and will they leave Australia”. The answer to this will help to determine if the applicant intends a genuine temporary stay.
It is understandable that the review applicant seeks to have her mother visits again during this particularly challenging time for her.
Having taken into account all matters, 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.
Conclusion
Given the Tribunal’s conclusions, the appropriate course is to remit the matter for consideration of any remaining criteria for the visa.
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.
·PIC 4014 for the purposes of cl.600.213 of Schedule 2 to the Regulations.
Susan Trotter
Member

[2019] AATA 6432

7 November 2019

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