Kumar (Migration)

[2024] AATA 255

Kumar (Migration) [2024] AATA 255 (4 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rohita Kumar

VISA APPLICANT:  Mrs Sunita Devi Mani

CASE NUMBER:  2218201

HOME AFFAIRS REFERENCE(S):          BCC2022/4811729

MEMBER:Melissa McAdam

DATE:4 January 2024

PLACE OF DECISION:  Sydney

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 04 January 2024 at 12:02pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – past compliance with visa conditions – immigration history – intention to comply with visa conditions – No Work condition – No Study condition – other relevant matters – presence of close family members in home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 2 December 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 12 November 2022. 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.

   Visa application

4. The visa applicant is the sister of the review applicant.  The review applicant is an Australian citizen.

5. The visa applicant provided the following information in her visa application:

   a.She is a citizen of Fiji, born in 1967.

   b.She wants to visit family in Australia for up to three months.

   c.Her sister, the review applicant, is an Australian citizen.  She also has a brother who is an Australian citizen. Her parents are Australian Permanent Residents.

   d.She is widowed. 

   e.She is unemployed in Fiji

   f.She will partially self-fund her travel to Australia and her sister will also financially support her during her stay in Australia.

   g.She has previously travelled to Australia.

   h.She applied to migrate to Australia on a Remaining Relative (Subclass 115) visa but was refused. She also applied for a Visitor visa in December 2018 and her application was refused.

6. With her visa application the visa applicant provided the following document copies:

   -The review applicant’s Bank account statement.

   -The visa applicant’s Fijian passport including pages with entry and exit stamps to Australia.

   -The visa applicant’s Fijian Driver’s Licence.

   -The visa applicant’s Fijian Taxpayer’s ID Card.

   -A letter from the review applicant regarding her invitation to the visa applicant to visit Australia.

7. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because she had not provided sufficient evidence of strong ties or commitments to Fiji.

   Review information

8. The review applicant provided the following additional materials to the Tribunal:

   -An undated doctor’s letter certifying that the applicants’ brother Rohit in Australia is unable to travel to see the visa applicant because of a medical condition.

   -A doctor’s letter dated 7 February 2023 certifying that the applicants’ brother Rohit is receiving treatment for liver disease and gastric conditions.

   -Other medical documents in relation to the applicants’ brother Rohit.

9. The visa applicant’s movement records held by the Department show that she has visited Australia three times on a Visitor visa between 2008 and 2017. On each occasion she departed before the expiration of her visa.

   Pre-Hearing Submission

10. On 27 December 2023 the applicants submitted the following further materials to the Tribunal:

    -A copy of the visa applicant’s Australian visa stamps in her passport.

    -A copy of the review applicant’s Bank Account statement.

    -A written statement from the review applicant.

    -A written statement from the visa applicant.

    -A letter of support from the visa applicant’s sister Ashita Chand.

    -A copy of the Ashita Chand’s Bank Account statement.

    -A copy of a Council Rates Notice for Ms Chand’s property.

11. In the review applicant’s statement she writes that she and her sister Ashita Chand will accommodate the visa applicant while she is in Australia, at their residences.  She is willing to pay a bond for the visa applicant’s visit.

12. Ashita Chand writes that she and her sister, the review applicant, will accommodate and support the visa applicant while she is in Australia.

13. In the visa applicant’s statement she writes the following:

    The reason of my visit to Australia is to spend quality time with my siblings and my elderly parents for a period of one month only as I will have to return to my home country to stay with my daughter who is attending University of Fiji currently and needs my support. I have previously visited Australia occasionally for the same reason and have returned to Fiji within the given period of time. The following are my travel details; from 17/04/08 – 13/07/08 (first visit), 30/10/09 – 07/01/10 (second visit) and 11/12/16 – 07/01/17 (last visit).  As you know I have made numerous visits to Australia with no plans or intentions to stay back, this time again I will return to my home country after having a family reunion within the allocated dates granted.

    Tribunal Hearing

14. The review applicant appeared before the Tribunal on 4 January 2024 to give evidence and present arguments. The Tribunal also received evidence from the applicants’ sister Ashita Chand. The following is a summary of the information provided at the hearing:

    a.The visa applicant has no intention to stay in Australia. She likes it in Fiji.

    b.She applied to migrate to Australia in 2014 when her children were still young because she thought it would help their education for them all to be in Australia.  Now her children are grown up and education in Australia is no longer relevant to them.

    c.The visa applicant has two daughters. The elder, Sheenal, is about 32 years of age, married, and living in the USA.  The younger daughter, Sweta, is about 25 and is completing her medical studies to be a doctor at university in Fiji. 

    d.Sweta lives with the visa applicant.  In their culture a daughter must live with her mother until she is married.  The visa applicant also supports Sweta while she is studying.  The visa applicant would not remain in Australia and leave Sweta alone.

    e.The visa applicant has a small farm plot in Fiji where she grows vegetables and does her own gardening.  She has enough produce for herself and family.  Her husband who passed away had some money which the visa applicant still has access to.  Her daughter Sheenal in the USA also helps financially support the visa applicant. On special occasions such as Christmas, New Year’s and her birthday the family in Australia send her money which the visa applicant saves.

    f.Sweta is studying in Fiji so she gets some financial support through the government loan scheme.   She wants to be a doctor in Fiji. She does not want o work outside Fiji. She is in her final year of medical studies.

    g.Since the visa applicant applied to migrate to Australia and was refused she has been to visit Australia on a Visitor visa. This was in 2016-2017.  She did not overstay or breach any visa conditions.

    h.Ashita is also an Australian citizen.  Ashita visited the visa applicant in Fiji in 2022.  The visa applicant lives in a comfortable home with her younger daughter in Fiji.

    i.The visa applicant loves gardening. She also has her friends and local community in Fiji.  She attends the local temple and is involved with people there.

    j.The review applicant and Ashita would like their nieces Sweta and Sheenal to also visit Australia in the future.  They understand that if the visa applicant breaches her visa conditions or overstays in Australia this may cause some problems for them to visit.

    k.The visa applicant would like to visit Australia for up to one month.

    l.When the visa applicant last visited Australia the review applicant paid a security bond for the visit.  There were no problems and all the money was returned to her when the visa applicant departed Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

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

17. 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)).

18. The visa applicant last held a substantive visa (a Visitor visa) in Australia between December 2016 and January 2017.  Conditions 8101, 8201, 8503, and 8531 were attached to her visa. There is no indication before the Tribunal that the visa applicant breached any of these visa conditions.  On the information before it the Tribunal accepts that the visa applicant complied with her visa conditions while in Australia.  The visa applicant travelled to Australia on the Visitor visa on 11 December 2016.  The visa allowed her to remain in Australia until 10 January 2017.   According to the Department’s records the visa applicant departed Australia on 7 January 2017, before her visa ceased.  The Tribunal gives these factors substantial weight in the visa applicant’s favour.

19. 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.

20. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant and her other sister, Ashita, while in Australia. The Tribunal also accepts that she has access to sufficient funds to support herself during a visit to Australia.  The Tribunal further accepts that the visa applicant will be very occupied spending time with her numerous close family members in Australia. The Tribunal is therefore satisfied that she does not intend to work while in Australia.

21. There is no evidence or indication that the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

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

23. The Tribunal accepts that the visa applicant’s younger daughter lives with her in Fiji. The Tribunal considers that her presence represents substantial inducement for the visa applicant to return to Fiji.

24. The Tribunal also accepts that the visa applicant has some responsibilities for the care and support of her younger daughter while she completes her studies. The Tribunal accepts that it is customary for a daughter to live with her parents until marriage.  The Tribunal considers that these factors are further significant inducement for the visa applicant to return to Fiji and not remain in Australia past the expiry date of her visa.

25. The Tribunal gives favourable weight to the good immigration history of the review applicant and other close relatives in Australia.

26. The Tribunal accepts that the review applicant would like her nieces, the visa applicant’s daughters, to be able to visit Australia in the future. It would therefore be important to her and the visa applicant to establish a good compliance record by the visa applicant, to improve the possibility other family members may be granted Visitor visas to Australia in the future. The Tribunal considers this motivation for the review applicant and the visa applicant to ensure the visa applicant complies with her visa conditions and departs Australia before her Visitor visa expires.

27. The Tribunal accepts the evidence that visa applicant has a stable, established and comfortable life in Fiji and has no apparent economic motivation to live outside of Fiji. 

28. In the Tribunal’s view the incentives for the visa applicant to return to Fiji outweigh any reasons for her to remain in Australia past the expiry date of a Visitor visa. 

29. For the above reasons 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.

    DECISION

30. 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.

    Melissa McAdam
    Member