Manveet kaur (Migration)

[2018] AATA 5492

Manveet kaur (Migration) [2018] AATA 5492 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Manveet Kaur

VISA APPLICANT:  Mr Sarbjot Singh Bhinder

CASE NUMBER:  1731304

HOME AFFAIRS REFERENCE(S):           CLD2018/5159198

MEMBER:Christine Kannis

DATE:2 November 2018

PLACE OF DECISION:  Perth

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 02 November 2018 at 8:35am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – genuine intention to stay temporarily – applicant lodged a partner visa application – Decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359AA, 376

Migration Regulations 1994, 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 Immigration on 29 November 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 24 August 2017. 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 (the Regulations). Relevantly to this case, they include cl.600.211, which requires Minister to be satisfied 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 because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia and therefore he did not satisfy cl.600.211.  

5. On 29 October 2018 the Tribunal conducted a telephone hearing during which the review applicant gave evidence in support of her application for review.

6. At the commencement of the hearing the Tribunal informed the review applicant that information contained in folio 108 of the Departmental file was the subject of a s.376 certificate and advised her that such a certificate means the Minister has certified the disclosure of any matter or information contained in the identified folio would be contrary to the public interest or that a document or information was provided in confidence. The legislation gives the Tribunal discretion whether to disclose the information to an applicant.

7. In this case the reason disclosure would be contrary to the public interest was stated to be that the release of the information could compromise the effectiveness of the Department’s intelligence gathering tools, which could potentially weaken the Department’s ability to effectively keep Australia and Australians secure from persons who may pose a threat or risk.  The Tribunal informed the applicant of its determination that the certificate was valid.   

8. The Tribunal decided the information was relevant to the review because it related to the nature of the relationship between the visa applicant and the review applicant which may impact on whether visa applicant genuinely intends to stay temporarily in Australia. The Tribunal informed the review applicant that it would be releasing the information to her for her comment or response during the hearing pursuant to s.359AA of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether cl.600.211 is met.

11. The visa applicant is a national of India. The visa applicant seeks the visa for the purpose of a family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

12. 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)). In this case, the visa applicant has never held a visa to Australia and there are no considerations relevant to cl.600.211(a).  

13. 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.600.211(3)):

    ·8101 – must not work in Australia

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

14. There is no information before the Tribunal to suggest that the visa applicant would engage in any work or study or training in Australia.  Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa conditions 8101 and 8201. 

15. The visa applicant and the review applicant were married in India on 23 December 2016. Since their marriage the review applicant has travelled to India to visit the visa applicant on two occasions. She told the Tribunal she spent seven weeks in India in October and November 2017. The hearing was conducted by telephone because the review applicant was in India on the date of the hearing.

16. Prior to the hearing the review applicant provided a written submission and additional documentation which included but was not limited to a Marriage Certificate, financial evidence and medical evidence. In the written submission the review applicant said after her marriage to the visa applicant in India they could not spend time together due to her job commitments in Australia. She said she does not have any family support in Australia and she became depressed which caused her to return to India in September 2018 until her husband’s visa application is processed. The Tribunal noted that an application for a Subclass 309 visa for the visa applicant was made on 17 August 2017.

17. The Tribunal asked the review applicant the reason for the eight month delay in applying for the Subclass 309 visa after the marriage. She said there had been problems obtaining the visa applicant’s Birth Certificate and it had taken several months.

18. In the written submission the review applicant said they both had sufficient funds in their respective bank accounts to cover the visa applicant’s expenses for a two month trip to Australia. Documentary evidence of the parties’ respective bank account balances was provided. The review applicant told the Tribunal that prior to her most recent departure from Australia she had resigned from her employment. She was too depressed and without family support in Australia. She said she is confident that she will be able to find employment when she returns because she has the necessary qualification and 3.5 years experience. The review applicant is a childcare worker.

19. In a letter dated 13 October 2018 to the Tribunal the review applicant said:

    I want to assure you that my husband at no condition will overstay in Australia and will return back as he has work and family commitments back in India.

20. The Tribunal asked the review applicant about the visa applicant’s family commitments and in particular regarding if he is granted a Subclass 309 visa it is likely that he would leave his family on a permanent basis. She said the visa applicant’s commitment is to his mother and if he is granted a permanent visa in Australia they plan to eventually bring her mother-in-law to Australia too. In the meantime her mother-in-law would stay with the review applicant’s extended family.

21. The review applicant told the Tribunal the visa applicant would not violate a condition of his visa by not leaving Australia because he would not want to jeopardise his current application for a Subclass 309 visa. Departmental records indicate that a decision regarding the visa is still under consideration and has not been made. The visa applicant said she had originally arrived in Australia as the holder of a student visa and she had never breached a condition of any of the visas she has held in Australia.

22. The Tribunal put information to the applicant utilising the procedure pursuant to s.359AA of the Act. The Tribunal informed the applicant that the information was on the Departmental file and was information adverse to her claim. The Tribunal told her that subject to her comment or response, the information would be the reason or part of the reason for affirming the decision under review. The Tribunal put to the review applicant that an allegation had been made that the parties are in a contrived marriage. The review applicant said the marriage was a love marriage and they had 700 to 800 guests witness the union. The Tribunal accepted the review applicant’s evidence in this regard.

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

24. Taking into account all of the evidence before it, 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 that he would comply with all relevant conditions imposed on the visa.

25. Accordingly the requirements of cl.600.211 are met.

    DECISION

26. 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.

    Christine Kannis
    Member