Singh (Migration)

[2020] AATA 3025

Singh (Migration) [2020] AATA 3025 (18 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Aminder Singh

VISA APPLICANT:  Mr Simran Jeet Singh Chandhok

CASE NUMBER:  1821369

HOME AFFAIRS REFERENCE(S):          BCC2018/3750278

MEMBER:Ian Garnham

DATE:18 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 18 May 2020 at 10:00am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – applicant’s extensive migration history in Australia – period of unlawful residence and exclusion – alleged complaints against former migration agent – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 12 July 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 13 June 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 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 appeared before the Tribunal on 7 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence (by conference telephone) from, the visa applicant, Simran Jeet Singh Chandhok, who is the 31yo review applicant's brother.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. For the following reasons, the Tribunal has concluded that the decision should be affirmed.

   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.

   Purpose of visit:

9. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother and his family during his vacation.  His brother, who is the review applicant and sponsor, came to Australia in 2004 on a subclass 572 (Vocational Education and Training) visa. 

10. In 2006, he was granted a subclass 880 (Skilled Independent Overseas Student) visa and he became an Australian citizen on January 2009.  The review applicant married in 2013 and lives with his wife and they have a young child.  It is proposed that the visa applicant will live with the review applicant and his family while in Australia.

11. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

    cl.600.211(a):

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.

13. The visa applicant has an extensive migration history in Australia.

14. He first came to Australia as a tourist, with the applicants’ parents, when he was 16yo to visit the review applicant.  They arrived on 24/12/2005 and departed on 11/01/2006.  He then came to Australia on a subclass 573 (Higher Education Sector) visa on 04/08/2007 that ceased to have effect on 15/03/2011. 

15. On 24/02/2011 the visa applicant applied for a further subclass 573 (Higher Education Sector) visa.  On 24/02/2011 the Department requested he provide information including evidence of a medical examination and other documents.  On 28/03/2011 the visa applicant submitted further documents to the Department.  On 07/07/2011 the visa applicant’s medical assessment was not met.  He was given an invitation to respond to this assessment and did not do so.  On 16 August 2011 a delegate refused the visa application.

16. On 6 September 2011 the visa applicant applied to the predecessor of this tribunal[1] for review of the delegate’s decision.  On 19 March 2012 the MRT wrote to the visa applicant and provided an opportunity for him to respond to adverse information and to request a further medical assessment.  The visa applicant did not respond to this invitation and on 30 April 2012 the MRT affirmed the decision.   

    [1] Migration Review Tribunal (MRT)

17. On 30 May 2012 the visa applicant’s Bridging A visa ceased to have effect and the visa applicant became unlawful (without visa).  The visa applicant was granted a series of Bridging E visas from 4 July 2012 until he departed on 20 February 2013.  These events led to a 3 year application exclusion period being applied to the visa applicant.  A previous tourist visa application made in 2015, by the visa applicant was refused due to this exclusion period.

18. At the hearing the review applicant said that his parents have visited him in Australia on 3 occasions in 2005, 2009 and 2016.  On all occasions they have complied with visa conditions and have not overstayed their tourist visa limits.  I accept this information is accurate and acknowledge this demonstrates compliant conduct by family members of the applicants.          

    cl.600.211(b):

19. 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.600.612):

    ·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.

20. The applicants claim that the visa applicant is currently enrolled at the Perfect Computer Institute studying animation.  The visa applicant provided a document purporting to verify that study and his ability to take leave to visit Australia.[2]  The applicants claim that the course, which is due to end in 2020 provides strong incentive for the visa applicant to only stay in Australia temporarily.

    [2] AT F: 62 (DOHA)

21. In the application the visa applicant said his parents and his brother would meet his expenses for the trip and he would stay with his brother and family who would feed and accommodate him. 

22. The visa applicant also said that his parents were getting older and his mother may want to travel with him but his father would not and he would be required to return to care for his father.  The applicants both also stressed that it is now difficult for the sponsor to travel with his family and that he and his brother have a close relationship that they seek to maintain by more regular contact.

23. The applicants submitted that; collectively, the visa applicant’s incentives to return to India and only stay temporarily in Australia, outweigh a view that he will fail to comply with the above conditions.

    cl.600.211(c):

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

25. The difficult issue confronting the visa applicant is his previous non-compliance with visa conditions when he was in Australia.  The visa applicant’s evidence is that his migration agent failed to advise him of the progress of his review and this resulted in a negative decision being made due to lack of medical evidence.  He claims he explained this at a meeting with the Department in 2012.

26. The tribunal requested further information that corroborated the applicants’ evidence; that the visa applicant’s non-compliant migration history arose from a total failure of his migration agent to manage his migration affairs.  Essentially the visa applicant is submitting that the non-compliant aspects of his migration history (as set out in paragraphs 14-17), were outside of his control and fully attributable to failings of his migration agent.  

27. I provided the visa applicant with an opportunity to provide information verifying contact between the visa applicant and his migration agent and the Department at those relevant times.

28. On 7 November 2019 the visa applicant provided an undated, unsigned letter purportedly written to the Department at the relevant time.  Among other things, in the letter, he complains about his migration agent and states he kept on asking him for money and did not pass on communication to him when documents were requested of him.   

29. On 8 November 2019 the visa applicant provided a screenshot of copies of two e-mails; one from the migration agent to the visa applicant; dated 6 April 2012, merely providing bank details, and, one from the visa applicant to the migration agent, dated 17 June 2012, merely requesting …a copy of all the documentation and correspondages (sic) of the file of MRT appeal for my application. 

30. These e-mails do not demonstrate a dispute between the migration agent and visa applicant that founds causation for the visa applicant’s previous non-compliant migration behaviour.   

31. The visa applicant essentially lived in Australia for over 6 years.  For the first 3½ years he held a substantive visa.  From the time after the MRT decision had been made and the visa applicant’s rights to review had passed; followed by a month without a visa, the visa applicant then remained in Australia for a further six months on Bridging visas.     

32. The visa applicant has failed to demonstrate an outside cause that justifies or explains his previous non-compliant conduct.  He also does not acknowledge or appear willing to attribute any fault of his own contributing to the previous migration conduct.

33. Nevertheless, the review applicant said he would provide a significant security deposit to ensure that the visa applicant complied with the terms of any visa.  Both applicants said that their parents are seeking to come to Australia for longer periods and subclass 173 Contributory Parent (Temporary) applications have been lodged; he would not jeopardise these applications by failing to comply with visa conditions.

34. Despite these further incentives for the visa applicant to return to India.  The length and proximity of his previous stay, and especially his failure to acknowledge and accept any responsibility for the breaches of his visa conditions; does not satisfy me that he genuinely intends to stay temporarily in Australia.    

35. For these 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

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

    Ian Garnham
    Member