Kumar (Migration)

[2024] AATA 732

Kumar (Migration) [2024] AATA 732 (27 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pankaj Kumar

REPRESENTATIVE:  Mr Bikkar Singh Brar (MARN: 0320569)

CASE NUMBER:  2303235

HOME AFFAIRS REFERENCE(S):          BCC2019/197375

MEMBER:Jane Marquard

DATE:27 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 27 March 2024 at 12:27pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – multiple visa applications – applicant left Australia – planned marriage – visiting family – incentives to return to home country – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.411

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 15 February 2023 to refuse to grant him a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   MIGRATION HISTORY

2. The applicant first arrived in Australia on 9 March 2008 on a Higher Education Sector (Subclass 573) visa.

3. He was granted a further Higher Education Sector (Subclass 573) visa on 20 August 2008. This visa was cancelled on 16 September 2010 due to non-compliance.

4. On 7 June 2010 the applicant lodged a Skilled (Residence) (Onshore) (VB 885) visa application. The visa was refused on 6 February 2014. That decision was affirmed by this Tribunal differently constituted. An application made by the applicant for judicial review was dismissed.

5. The applicant was granted a Bridging Visa B (BVB) (Subclass 020) visa on 2 March 2011 which ceased on 16 April 2014. The applicant lodged a Temporary Work (Skilled) (UC 457) visa application on 28 April 2014 which was withdrawn on 12 September 2014.

6. On 18 July 2014 the applicant was granted a Bridging Visa A (BVA) (Subclass 020) visa which ceased on 26 November 2014.

7. On 26 November 2014 the applicant was granted a Bridging Visa B (BVB) (Subclass 020) visa, which ceased on 2 January 2015.

8. On 20 December 2014 the applicant was granted a Bridging Visa (BVC) (Subclass 030) visa which ceased on 23 January 2015.

9. On 27 January 2015 the applicant was granted a Temporary Work (skilled) (UC 457) visa which ceased on 27 January 2019.

10. On 25 January 2015 the applicant lodged a Visitor (Class FA) (Tourist) (Subclass 600) visa which was refused by the Department of Home Affairs (the Department) on 14 March 2019. This Tribunal (differently constituted) remitted that decision on 6 May 2021. The issue in that case was whether the applicant had made appropriate arrangements for payment of his outstanding debt to the Commonwealth, and the Tribunal determined that he had.

11. On 25 January 2019 the applicant lodged a Visitor (Class FA) Visitor (Tourist) (Subclass 600) visa application. The Department refused this application on 15 February 2023. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 of Schedule 2 to the Regulations.

12. This is the decision before this Tribunal for review.

    EVIDENCE CONSIDERED

13. The Tribunal has taken into consideration the evidence before the Department and the application for review to this Tribunal.

14. On 6 March 2024 the Tribunal invited the applicant to a hearing of the matter on 25 March 2024 to provide evidence in relation to the issues arising in the review.

15. On 23 March 2024 the applicant’s representative notified the Tribunal that the representative had been unable to contact the applicant and had not been notified when he left Australia. The representative noted that the applicant had left for India.

16. The applicant did not appear at the scheduled date and time for his hearing.

17. Departmental movement records indicate that the applicant has departed Australia (on 26 November 2023).

    RELEVANT LAW 

18. The visa applicant applied for the visa on 25 January 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.

19. 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.

20. 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, 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.

    FINDINGS AND REASONS

21. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    PURPOSE

22. In the present case, the visa applicant sought the visa for the purposes of ‘tidying up his affairs, marrying and visiting his de facto’. Visiting family is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

    Substantial compliance with conditions of last substantive visa held, or any subsequent bridging visa

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. There is no information before the Tribunal to indicate that the applicant did not comply substantially with the conditions of the last visa held.

    Intention to comply with conditions

25. 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)).

26. The Tribunal is unable to be satisfied that the applicant intends to comply with visa conditions as the applicant did not attend the scheduled hearing, so the Tribunal was unable to discuss this matter with him. He had also been invited to provide written submissions but did not do so. The applicant was notified in the letter dated 4 March 2024 that the Tribunal was unable to make a decision on the information before it and that if he did not attend the hearing, the Tribunal may make a decision on the review without taking any further action for him to appear.

    Other relevant matters

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

    Purpose and length

28. The applicant requested a stay of up to 6 months to ‘finally wind up, meet friends, meet fiancée and her parents. Stay with and visit my fiancée places as given in my tourism activities. Solemnise our marriage, go to India with my partner to meet my and her family and our friends and go to Shimla a hill station in Himachal Pradesh’.

29. He provided a list of ‘planned tourism activities’, for 2019, including clearing bills, meeting friends, winding up, visiting Melbourne, Coffs Harbour and Gold Coast, marriage.

30. As this period of time has concluded, and the applicant did not attend the Tribunal hearing, the Tribunal was unable to discuss with him the purpose of his intended visit or whether it was commensurate with a genuine intention to visit temporarily.

    Incentives

31. The applicant did not attend the Tribunal hearing, so the Tribunal was unable to discuss with him the incentives to return to his home country at the end of his visit. Although provided with an opportunity to provide written submissions, he did not do so.

    Findings on cl 600.211 of Schedule 2 to the Regulations

32. The applicant was notified in the letter dated 4 March 2024 that the Tribunal was unable to make a decision on the information before it and that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action for him to appear. The applicant did not attend the hearing scheduled on 25 March 2024.

33. Although the applicant appeared to have a genuine reason to visit and had substantially complied with his last visa, the Tribunal does not have sufficient information before it to be satisfied that he intends to comply with visa conditions or that there are incentives to return to his country at the end of a visit. 

34. For these reasons the Tribunal is not 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 not met.

    Clause 600.411 of Schedule 2 to the Regulations

35. On 20 March 2024 the Tribunal wrote to the applicant noting that he had applied for the visa in Australia on 25 January 2019 and that Departmental movement records indicated that he had departed Australia on 26 November 2023.

36. The Tribunal noted that cl 600.411 of Schedule 2 to the Regulations provides that if an applicant is in Australia at the time of application the applicant must be in Australia at the time of grant. The Tribunal noted that it appeared that he would not meet the circumstances applicable to the grant and invited him to comment.

37. On 23 March 2024 the applicant’s representative notified the Tribunal that the representative had been unable to contact the applicant and had not been notified when he left Australia. The representative noted that he had left for India.

38. The Tribunal notes that it appears that the applicant would not be able to meet cl 600.411 of Schedule 2 to the Regulations, which are the circumstances applicable to the grant.

    DECISION

39. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Jane Marquard
    Member