Putta (Migration)

Putta (Migration) [2017] AATA 142 (19 January 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Dr Sushma Putta
VISA APPLICANT:  Dr Ashvij Putta
CASE NUMBER:  1608211
DIBP REFERENCE(S):  BCC2016/1553189 N16/04031885
MEMBER:Tony Caravella
DATE:19 January 2017
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; and
·cl.600.215 of Schedule 2 to the Regulations.

Statement made on 19 January 2017 at 10:33am
CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 – Tourist stream – Exceptional circumstances – Previous extension on Visitor visa – Applicant’s stay less than 12 consecutive months – Australian Medical Council exams – Incentives to return
LEGISLATION
Migration Act, 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211, cl 600.215, cl 600.221, cl 600.222

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 June 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 11 May 2016 having lodged the application for the visa in New Delhi. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case, the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.
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. 600.215, which requires exceptional circumstances where the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of certain specified visas for a total period of more than 12 months. The criteria for the Subclass 600 visa also includes cl.600.211, which requires the visa applicant to satisfy the Minister, or the Tribunal on review, that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.215. The delegate’s decision record refers to the applicant having travelled to Australia on 27 April 2015 as the holder of a Subclass 600 Visitor visa and then being granted two subsequent Visitor visas. The delegate was not satisfied that exceptional circumstances existed for the grant of the visa which the delegate found would result in the applicant being authorised to stay in Australia as the holder of one or more of certain specified visas for a total period of more than 12 months.
The review applicant appeared before the Tribunal on 18 January 2017 to give evidence and present arguments.
The review applicant, Dr Putta, began her sworn oral evidence by confirming that the visa applicant is her brother.
Dr Putta told the Tribunal that the visa applicant previously entered Australia as the holder of a Visitor visa on 27 April 2015. She said that he lodged a request to extend his visa, as he likes Australia. More immediately, however, the visa applicant wishes to sit the Australian Medical Council (AMC) examinations. Dr Putta told the Tribunal that the visa applicant is a medical practitioner in India. She provided the Tribunal a copy of a letter dated 19 September 2016 showing the visa applicant is registered to sit the AMC CAT MCQ Examination scheduled for Saturday 18 February 2017. The examination is to take place in Perth.
Dr Putta submitted to the Tribunal that the delegate’s decision was wrong to refuse the visa on the basis of cl.600.215 at the time of the delegate’s decision. She submitted that the visa applicant departed Australia on 4 May 2016 and because of this even if the delegate had granted the Visitor visa on 2 June 2016 (that is the date of the delegate’s decision) the visa applicant would not fail cl.600.215 because the grant of the visa would not result in the applicant being authorised to stay in Australia as the holder of one or more of certain specified visas for a total period of more than 12 months. Dr Putta submitted that since the visa applicant lodged the visa application on 11 May 2016, he has remained in India and that he has therefore met cl.600.215.
Noting that the visa applicant had been granted a relevant Visitor visa on 6 July 2015, a bridging visa on 24 December 2015, a further Visitor visa on 18 January 2016, and departed Australia on 4 May 2016, and noting the delegate made their decision on 2 June 2016, the Tribunal indicated to the review applicant at the hearing that her submission that the visa applicant did not fail to meet cl.600.215 was correct.
Dr Putta told the Tribunal that the visa applicant has paid $2,720 to sit the AMC exam. She said the visa applicant has applied to sit the AMC exam on five previous occasions in the hope that he would be granted a visa to enter Australia and sit the exam. However, as the visa applicant had not been granted a visa at the relevant time, he had to postpone sitting the exam on five occasions. Dr Putta told the Tribunal when her brother postponed sitting the exam in the past he received a credit of the fee paid, however, because of has postponed this on five occasions, if he fails to sit the exam on this occasion, that is on 18 February 2017, he will forfeit the $2,720 he has paid.
Dr Putta submitted further evidence of her and her husband’s financial circumstances, and evidence of her husband’s employment. Dr Putta told the Tribunal that her husband is a medical practitioner and works at King Edward Memorial Hospital and at Princess Margaret hospital. Dr Putta told the Tribunal that she is also a qualified doctor in India and is presently also preparing to sit the AMC examination in Australia. In the meantime, she also looks after her young child.
The Tribunal invited Dr Putta to submit evidence in relation to cl.600.211 of Schedule 2 to the Regulations. It explained that provision requires the Minister be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Clause 600.211 also requires the Minister to have 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. It also requires the decision maker to have regard to whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject, and to have regard to any other relevant matter.
In relation to cl.600.211, Dr Putta told the Tribunal that the visa applicant will do the right thing in relation to the visa and comply with all visa conditions. She told the Tribunal that the visa applicant is specialising in psychiatry in India and will return to continue his studies after visiting Australia. Dr Putta told the Tribunal that the visa applicant has complied with all previous visa conditions, including the no-work condition. She added that he did some voluntary work doing bird counting in Australia because he loves birds.
Dr Putta gave some background to the visa applicant’s circumstances in India. She said that while he is unmarried and without a fiancé, both his parents continue to live in India, specifically in Bangalore. He is currently completing his specialisation in psychiatry but will postpone that for the time that he is in Australia if this visa is granted. His father is retired and his mother has not worked but has been a homemaker.
Dr Putta told the Tribunal the applicant has previously travelled to Indonesia and has complied with all visa conditions there. She added that there is no reason to her knowledge why he would not return to India if the Visitor visa is granted. Dr Putta told the Tribunal that the visa applicant is not at risk of any harm for any reason in India. She also said that he does not intend to study or to enrol in any course in Australia. She said that the visa applicant previously was employed as a medical practitioner in a hospital in Pondicherry, India and he has completed his Master’s degree in psychiatry. She explained that he is studying full time now and that his father provides financial support to him to complete his studies. She explained that the visa applicant’s father retired after being Commissioner for Transport in Hyderabad and has a good pension in addition to having rental properties from which they derive income.
Dr Putta concluded her evidence by submitting that the visa applicant seeks the visa for six months which would permit him to re-sit the AMC examination in the event he fails on his first attempt.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether cl.600.215 and cl.600.211 are met.
Does the applicant meet cl.600.215 ?
Clause 600.215 states:
600.215
(1) If subclause (2) applies—exceptional circumstances exist for the grant of the visa.
(2) This subclause applies if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months:
(a) one or more visitor visas;
(b) a Subclass 417 (Working Holiday) visa;
(c) a Subclass 462 (Work and Holiday) visa;
(d) a bridging visa.
The Tribunal finds by reference to the Department’s movement records, that the visa applicant was last granted a Subclass 600 visa on 18 January 2016. The movement records show that visa was expired on 27 April 2016. The Tribunal finds the applicant was then granted a bridging subclass 010 visa on 26 April 2016 and that expired on 4 May 2016 when he departed Australia. The Tribunal finds the applicant has not been granted a subsequent visa for Australia, nor returned to Australia, since departing on 4 May 2016.
The Tribunal finds that on the 11 May 2016 the applicant applied for the visa which is the subject of this review. The Tribunal finds that at that time, the applicant had departed Australia. It also finds that the grant of the Visitor visa at that time would not have breached cl.600.215 because it would not have resulted in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months. In other words, the applicant’s authorisation to stay in Australia had ceased on 4 May 2016 and it cannot be said that the grant of the visa would have resulted in him being authorised to stay in Australia as the holder of one or more of the specified visas for a total of more than 12 consecutive months.
Turning to the present circumstances and looking to the grant a the visa for which the applicant has applied, the Tribunal finds that upon remittal of this application to the Department, and subject to the applicant meeting all the remaining criteria for this visa, the grant of the visa would not result in the applicant being authorised to stay in Australia as the holder of one or more of the specified visas for a total of more than 12 consecutive months. For these reasons, the Tribunal finds the applicant meets the requirements prescribed in cl.600.215.
Does the applicant meet cl.600.211 ?
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.
In the present case, the visa applicant seeks the visa for the purposes of visiting his family and to sit the AMC medical examination. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.
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)).
Having regard to the evidence before it, including the Department’s movement records, the Tribunal finds it is satisfied the visa applicant has complied substantially with the conditions of his last substantive visa, or with the conditions of the subsequent bridging visa.
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
·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.
There is no evidence before the Tribunal to suggest the applicant failed to comply with these conditions when he last held visas in Australia. Further, the Tribunal found the evidence of the review applicant, Dr Putta, to be credible and convincing in all respects, including her submissions that the visa applicant understands the conditions that would apply to him, and that he fully intends to comply with them. Having regard to all the evidence and circumstances in this case, the Tribunal finds the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject.
The Tribunal has also considered all other relevant matters (cl.600.211(c)). In doing so, the Tribunal had regard to the Department’s policy guidance as contained in the Procedures Advice Manual (PAM3) which relevantly states:
In establishing whether 600.211(c) is satisfied, relevant considerations of any other matter may include, but are not limited to:
·     Personal circumstances
·     Credibility
·     Purpose and period of stay
·     Previous immigration/travel history
·     Intel reports and profile.
Personal circumstances
Namely:
·     the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:
o    ongoing employment
o    the presence of close family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia
o    property, or other significant assets, owned in their home country and
o    whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance
and
·     the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:
o    economic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia
o    economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.
o    the applicant’s personal ties to Australia, that is:
§ does the applicant have more close family members living in Australia than in their home country
§ is the applicant subject of adoption proceedings that have not been resolved in their home country
o    military service commitments
o    civil disruption, including war, lawlessness or political upheaval in the applicant’s home country.
Note: If refusing a visitor visa in relation to the genuine temporary stay criterion, s65 delegates must take care not to confuse the applicant’s financial circumstances as an incentive to return and the applicant’s access to ‘adequate means of support’. They are separate factors and so must be considered separately.
Credibility
The applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application).
Purpose and period of stay
Whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with “tourism”).
Previous immigration/travel history
Previous immigration and travel history, such as:
·     previous visa applications for Australia
·     previous overseas travel, that is, has the applicant travelled to countries other than Australia.
In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.
The Tribunal accepts the evidence presented to it indicating the applicant lives with his parents in India and that their presence there, at least for the present time, acts as a significant incentive for him to return to India.
The Tribunal considered all the circumstances and in particular the visa applicant’s occupation and apparent economic circumstances. It accepts the evidence that his parents are supporting him financially while he completes his studies in psychiatry. It finds no evidence to suggest that there are any significant disincentives facing the applicant’s return to India at the end of the Visitor visa which he has applied for.
As previously mentioned, the Tribunal found the review applicant’s sworn oral evidence to be consistent, plausible and credible. It found her to be a truthful witness. The Tribunal accepts her evidence that the visa applicant may have a longer-term intention to apply for a permanent visa for Australia. However, it is satisfied on the evidence before it that he is aware of the conditions attached to the Visitor visa, and in particular, that it is a visa which permits only a temporary stay. The Tribunal accepts on all the evidence the visa applicant will sit, and re-sit if necessary, the AMC exam and then return to India to resume his studies in psychiatry before the expiry of the visa which he seeks.
The Tribunal also finds that on the evidence before it, and in view of the visa applicant’s longer-term hope and intention to apply for a permanent visa, he will not want to prejudice his prospects in this regard by failing to comply with the Visitor visa conditions, or to otherwise attract an adverse visa history characterised by visa non-compliance.
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.
For the above reasons, the Tribunal finds the appropriate course of action is for it to remit the application for reconsideration with the directions set out below.
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, and
·cl.600.215 of Schedule 2 to the Regulations.
Tony Caravella
Member

[2017] AATA 142

19 January 2017

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Immigration

Statutory Interpretation

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Judicial Review

Procedural Fairness

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