Prasad (Migration)

[2018] AATA 4317

Prasad (Migration) [2018] AATA 4317 (24 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mahendra Prasad

VISA APPLICANT:  Miss Alvisha Shyan Lakhan

CASE NUMBER:  1805843

HOME AFFAIRS REFERENCE(S):           BCC2018/708048

MEMBER:Mary Urquhart

DATE:24 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 24 September 2018 at 3:47pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – purpose of visit – complete secondary schooling – no professional advice – not appropriate visa – decision under review affirned

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.231, 600.612

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 5 March 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 12 February 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 Sponsored Family 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 visas on the basis that the visa applicants did not meet cl.600.211 because it was not accepted that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted.

5. The review applicant appeared before the Tribunal on 24 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Mahendra the mother of the visa applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant states she seeks the visa for the purposes of study. This is not a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

9. 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)). The applicant has not previously travelled to Australia.

10. 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.600.612):

    ·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.

11. The visa applicant is a 15 year old minor who lives with her father in Fiji. Her mother Mrs Praveen Lata is in Australia on a Bridging visa granted in relation to a partner visa wherein she is sponsored by Mr Mehendra Prasad with whom she claims to be in a de facto relationship.

12. Mr Mehendra Prasad is the review applicant and sponsor for the visa applicant’s sponsored visa. The review applicant wishes the applicant can come and study at Braybrook College which is near where he and her mother live. The plan is that she would complete her secondary study there.

13. The applicant’s mother explained she wants her daughter to come as she needs support. She is living with her father; he works long hours and goes out and the 15 year old daughter is often alone. She has stopped going to school. She has to rise early to prepare her father’s breakfast and lunch and do home duties; the review applicant said the visa applicant is ridiculed at school as she told others she was coming to study in Australia and it has not happened.

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

15. The Tribunal notes the review applicant’s evidence that he has not sought professional advice in regard to a visa for the visa applicant.

16. The Tribunal finds the applicant's purpose is not a purpose for which a visa in the Tourist stream may be granted.

17. Whilst the Tribunal is sympathetic to the visa applicant’s circumstances there are other more appropriate visas that can be sought. The Tribunal records that the visitor visa program is designed to allow genuine tourists an opportunity to travel to Australia temporarily for the purposes of genuine tourist activities. It does not allow for people on visitor visas to come to, or remain in Australia for study purposes.

18. Accordingly the Tribunal is not satisfied the applicant meets clause 600.221.

19. For the above 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.

    DECISION

20. 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.

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

    Mary Urquhart
    Member