Patel (Migration)

[2020] AATA 4424

Patel (Migration) [2020] AATA 4424 (19 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nitinkumar Amrutlal Patel

VISA APPLICANT:  Mr Yatinkumar Amrutbhai Patel

CASE NUMBER:  1829264

HOME AFFAIRS REFERENCE(S):          BCC2018/2968055

MEMBER:Ian Garnham

DATE:19 August 2020

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 19 August 2020 at 9:30pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous visa compliant family visits – adequate funds to support the visit – family ties to India – offer of a security bond – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 Immigration on 20 August 2018 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 7 August 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 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 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 the visa applicant genuinely intends to stay temporarily in Australia for the stated purpose.

5.    The 36yo review applicant, who is the brother of the 34yo visa applicant, appeared before the Tribunal on 5 March 2020 to give evidence and present arguments.

6.    The review applicant was represented in relation to the review.  The representative did not attend the tribunal hearing.

7.    For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

8.    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.

The purpose:

9.    In the visa application, the visa applicant seeks the visa for the purposes of family visit.

10.      This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

cl.600.211(a):

11.      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.

12.      The visa applicant has not previously been to Australia and there was no evidence before the tribunal that he has ever travelled internationally.

13.      The visa applicant and review applicant are the only children of their parents.

14.      The review applicant first came to Australia in 2006 on a subclass 573 Higher Education Sector visa.  He was then granted a series of temporary and bridging visas before being granted a subclass 186 Employer Nomination Scheme (Permanent) visa in December 2014.  He became an Australian citizen in January 2017.     

15.      The parents of the applicants have visited the review applicant’s family in Australia.  Their Movement Details demonstrate they have visited 3 times together, in 2009, 2013 & 2016. The applicant’s mother also visited for 6 months in 2014.  On all of these occasions they have departed Australia before their visas ceased to have effect.

16.      I acknowledge that there is no evidence before the tribunal that the review applicant or the parents of the applicants have failed to comply with the conditions of any of the many visas they have been granted.   

cl.600.211(b):

17.      The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(2)):

·8101 – must not work in Australia

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

·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

·8531 – must not remain in Australia after end of permitted stay.

18.      With the application the applicants provided extensive personal financial and employment information.  Similar information was provided to the tribunal.  This includes bank account information for both applicants and provides evidence of adequate funds to support the family visit of the visa applicant and his wife and daughter.

19.      As this is now a singular application, the tribunal discussed with the review applicant the prospect of the visa applicant visiting Australia alone.  The review applicant said that the visa applicant and his family are adamant that they want to travel as a family as originally stated in the visa application for a period of approximately 5-6 weeks.  The strategy of the applicants is that if the visa applicant’s visa is ultimately granted, his wife and 8yo daughter will reapply for Visitor visas.  Therefore, the tribunal is unable to consider the visa applicant’s wife and daughter as incentives for him to comply with the above conditions.  Nevertheless, I acknowledge I acknowledge that the visa applicant’s parents reside in India and this provides significant incentive for the visa applicant to comply with the conditions and return to India within the terms of his visa.     

cl.600.211(c):

20.      The Tribunal has also considered all other relevant matters.

21.      At the hearing the review applicant said he is confident that the visa applicant will not seek to breach the above conditions in any way he has offered to provide a significant security bond to ensure compliance with the visa conditions.

22.      The review applicant was a credible witness who has a long history residing in Australia and is now an Australia citizen.  All of the evidence before me indicates the visa applicant will comply with his visa conditions, as the applicants’ parents have done on numerous occasions.

23.      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

1. 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

   Ian Garnham
   Member