SAMNANI (Migration)

[2020] AATA 2806

SAMNANI (Migration) [2020] AATA 2806 (12 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr SHAHANAWAZ SAMNANI

VISA APPLICANTS:  Mr Rajesh Amirali Samnani
Mrs SAMIRA RAJESH SAMNANI
Master PRANAV RAJESH SAMNANI

CASE NUMBER:  1810790

HOME AFFAIRS REFERENCE(S):          CLF2018/45324 N18/1304496

MEMBER:Jane Marquard

DATE:12 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for a Visitor (Class FA) visa for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in relation to the second and third-named applicants.

Statement made on 12 March 2020 at 12:26pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visiting family – past compliance with visa conditions – no adverse migration history in the family – duration of intended visit – incentives to return to country of origin – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 11 April 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The review applicant is an Australian citizen. The first-named visa applicant is his brother, who lives in Maliahatina, Gujarat, India. The second-named applicant is his sister-in-law, and the third-named applicant is his nephew.

3. The visa applicants applied for the visas on 13 March 2018 in separate visa applications. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Tourist stream.

   FINDINGS IN RELATION TO THE SECOND-NAMED AND THIRD-NAMED APPLICANTS

4. This decisions to refuse the visa applications are reviewable under s.338(7) of the Act.

5. The review application was lodged with the Tribunal on 26 April 2018. For the following reasons, the Tribunal has no jurisdiction to review the decisions in relation to the second and third-named applicants, as the application was not made in accordance with the relevant legislation.

6. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(7), an application for review may only be made by the relative referred to in the subsection concerned: s.347(2)(c), that is, a parent, spouse, de facto partner, child, brother or sister of the visa applicant.

7. On 11 May 2018 the Tribunal differently constituted wrote to the review applicant advising him that in relation to the second-named applicant, the application for review appeared not to be a valid application as it must be a parent, spouse, de facto partner, child, brother or sister of the visa applicant who can apply for review. The applicant was advised to make any comments on whether there was a valid application by 25 May 2018. On 16 May 2018 the review applicant wrote to the Tribunal and stated that the first-named visa applicant is the spouse of his brother and therefore the correct family relationship existed. He said that he would pay all expenses and was willing to pay a security bond. He submitted that a strict interpretation of the provisions was draconian and would mean that the husband and wife could not travel together.

8. As the decision that is the subject of the review application is a decision covered by s.338(7), the application for review could only be made by the relative referred to in that subsection. There is no discretion in the matter. In the present case, the review application was made by the brother-in-law of the second-named applicant and the uncle of the third-named applicant. As such, the application for review is not an application properly made under s.347 as it was not made by a parent, spouse, de facto partner, child, brother or sister of the visa applicant and it follows that the Tribunal does not have jurisdiction in this matter.

9. Furthermore, this is a second application for review in relation to the same visa application for the second-named applicant. The Tribunal differently constituted found that it had no jurisdiction in relation to the second-named applicant on 5 June 2018 (Case Number 1811836). Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision in a manner free from jurisdictional error, the decision is no longer a reviewable decision.[1] The Tribunal has no jurisdiction to review a delegate’s decision twice.[2]

   [1] SZBWJ v MIAC (2008) 171 FCR 299 at [10]; SZBRB v MIAC [2007] FCA 1452 (Rares J, 6 September 2007) at [21]

   [2] SZEYK v MIAC [2008] FCA 1940 (Bennett J, 19 December 2008) at [21]; Jayasinghe v MIEA (1997) 76 FCR 301

   FINDINGS IN RELATION TO THE FIRST-NAMED APPLICANT

10. The first-named visa applicant is the brother of the review applicant and therefore the application was properly made under section 347 and the Tribunal has jurisdiction in relation to the first-named applicant.

11. 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.

12. The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied that the visa applicants genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted.

13. There was no need to hold a hearing as the Tribunal was able to find in the first-named applicant’s favour on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in relation to the first-named applicant.

14. 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.

15. In the present case, the visa applicant sought the visas for the purpose of visiting family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

16. 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 first-named visa applicant has not travelled previously to Australia such that compliance or non-compliance is not relevant. However the Tribunal has taken into account the fact that the review applicant has complied with previous visa conditions and there is no adverse migration history in the family.

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 (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.

18. The Tribunal has taken into consideration the duration of the intended visit. It was requested that he visit for one month only. The Tribunal has also taken into consideration the purpose of the visit, to see his brother and his young family in Australia. Finally, the Tribunal has taken into account the fact that the first-named visa applicant owns a business and has family in India, and assurances by the review applicant that he will fund the trip for the visa applicant. The Tribunal is satisfied taking these matters into account that the first-named visa applicant intends to comply with the conditions to which the subclass 600 visa would be subject.

19. In regard to whether the applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted, the Tribunal has also considered all other relevant matters (cl.600.211(c)) including, firstly, incentives to return to India. The visa applicant has a wife and son in India. The visa applicant’s son, aged 11 is in school and the review applicant has submitted that the visa applicant would not put his son’s schooling in jeopardy by overstaying his visa. School documents were provided from St Joseph’s English Teaching High School.  It was also submitted that the visa applicant is responsible for their ageing father in India. The short trip was intended as some relief from this responsibility. The first-named visa applicant owns rural and urban property in India as evidenced by a number of documents. These include an Agreement of Sale of Land dated May 2006 for an apartment in ‘Lakshmi Commercial Complex’. Village Forms provided also indicated that he and his wife were ‘possessionars’ of a block of rural land. An Agreement for sale of land was provided in which the applicant was listed as purchaser of a ‘Gala’ in land situated in Village Gokhivare, District of Thane. In the application forms it was stated that the visa applicant is the owner of Radjeep Motors, where he has worked for 20 years. The review applicant has stated that he is involved in small and medium business enterprise. The Tribunal was provided with an income tax return form for 2017 for the applicant stating that he had gross income of 367 390 Rupees (approximately $ AUD 7400).

20. Secondly, the Tribunal has also taken into account the willingness of the review applicant to provide a bond to secure the return of the visa applicant at the end of the visit. Bank statements have been provided indicating he has sufficient funds for this purpose. This does suggest that he is confident that his brother will return to India at the cessation of the visa.

21. Thirdly, the Tribunal has also taken into account the submissions that the applicants are law abiding citizens and would not prejudice this through non-compliance with a visa.

22. Finally, the Tribunal has taken into consideration the submission of the review applicant that it has been difficult for him and his family to travel to India due to work and school commitments such that they wish to have a family reunion in Australia. His children are aged 6 and 8.

23. Considering all of these matters cumulatively, and in particular that there is no adverse migration history in the family, and that there are significant family, financial and employment incentives to return to India, the Tribunal is satisfied that the first-named visa applicant genuinely intend 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

24. The Tribunal remits the application for Visitor (Class FA) visas for reconsideration, with the direction that the  first-named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

25. The Tribunal does not have jurisdiction in relation to the second and third-named applicants.

    Jane Marquard
    Member