Vinod Kumar (Migration)

[2018] AATA 3328

Vinod Kumar (Migration) [2018] AATA 3328 (23 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr  Vinod Kumar

VISA APPLICANT:  Mrs Shehnaz Bano

CASE NUMBER:  1724705

DIBP REFERENCE(S):  BCC2017/2985949

MEMBER:Stavros Georgiadis

DATE AND TIME OF

ORAL DECISION AND REASONS:          23 July 2018 at 11:55 am (SA time)

DATE OF WRITTEN RECORD:                13 August 2018

PLACE OF DECISION:  Adelaide

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 13 August 2018 at 3:16pm

CATCHWORDS

Migration –Visitor (Class FA) – Subclass 600 (Visitor) – Sponsored family stream – Visit husband – Evidence of marriage – Previous applications refused – Adequate funds to support applicant’s trip – Incentive to return to India – Current partner visa application – Decision under review remitted for reconsideration 

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.212, 600.321, 600.612 Schedule 8 Conditions 8101, 8201

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 September 2017 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 23 July 2018 the tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The visa applicant applied for the visa on 19 August 2017.  At the time that the visa application was lodged class FA contained one subclass, subclass 600 visitor with four streams.

4. In this particular case the applicant applied for the visa seeking to satisfy the primary criteria in the sponsored family stream. The criteria for a subclass 600 visa are set out in part 600 of schedule to the Migration Regulations 1994. Relevantly to this case they include clause 600.211, which requires the visa applicant to satisfy the Minister, or this tribunal on review, that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet clause 600.211 because the delegate considered and was not satisfied that the visa applicant genuinely intends to visit Australia temporarily.

6. The review applicant appeared before the tribunal on 23 July 2018 to give evidence and present arguments.  The tribunal also received brief oral evidence from a witness, Mr Amar Singh in respect of his knowledge of the couple.

7. The tribunal was assisted by an interpreter of the Hindi and English languages where necessary.  The review applicant was represented in relation to the review by his registered migration agent who was also present throughout the entire hearing.

8. For the following reasons the tribunal has concluded that the matter should be remitted for reconsideration by the department.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether clause 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 also any other relevant matter.

10. In the present case the visa applicant seeks the visa for the purpose of visiting her husband in Australia and to travel in Australia.  This is a purpose (visiting a close relative, her husband) for which a visa in the sponsored family stream may be granted under clause 600.231.

11. The tribunal in this regard heard evidence, not only from the review applicant but also from witness Mr Amar Singh, and accepts from the evidence of these witnesses and also the evidence of a marriage from the certificate confirming marriage of 19 February 2017.  I mention the acceptance of a divorce (Mr Kumar's previous divorce) that was finalised on 29 March 2016 and his subsequent marriage of 19 February 2017.  The Tribunal accepts for this that the review applicant and the visa applicant are a married couple and seen to be by their community.

12. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose the tribunal must consider whether she has complied substantially with the conditions of the last substantive held or any subsequent bridging visa, as required under clause 600.211(a).

13. The tribunal accepts the oral evidence presented at the hearing and, in the absence of any movement details, that the visa applicant has not previously travelled to Australia.

14. In this regard the tribunal has no evidence one way or the other in respect of compliance or non-compliance with her last substantive visa but notes there is no evidence of non-compliance, given no prior visit to Australia.

15. The tribunal also questioned the review applicant as to whether the visa applicant has travelled outside of India to any other country to which the answer is that she has not.  Again, there is no evidence of non-compliance with visa conditions on any prior departure from India. This adds some weight in support of the application (as there is no evidence of non-compliance).

16. The tribunal must also consider whether the visa applicant intends to comply with the conditions to which the subclass 600 visa would be subject, as required under clause 600.211(b).  The conditions to which a visa, in the circumstances of this case, would be subject are as follows as set out under clause 600.612.  The conditions include the following:

    ·Condition 8101 must not work in Australia.

    ·Condition 8201 must not engage in study or training in Australia for more than three months.

    ·Condition 8503 not entitled to a substantive visa other than a protection visa while remaining in Australia, no extended stay; and

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

17. The tribunal accepts the oral evidence from the review applicant regarding discussions with his wife, the visa applicant, have confirmed that the planned proposed visit to Australia is for a period of up to three months and likely to be approximately two months (although the initial application was for a period of up to six months.)  This is against the background where there have been three applications for 600 visitor visas in the past, all of which have been refused.

18. At the hearing the review applicant emphasised very strongly, the discussions with his wife and the very strong desire to ensure that all conditions of the visa are complied with, so that there is no prejudice to a current partner subclass 309 visa that was lodged on 26 April 2017.  The tribunal notes that at the time of the current subclass 600 visa application, the visa applicant and the review applicant had already lodged a partner subclass 309 visa and notes, in particular, that the delegate erred in finding that there was no pending partner visa application made, as recorded in the delegate's comments in the decision of 21 September 2017.

19. The tribunal considers this (the pending subclause 309 application) would act as a very strong incentive for the visa applicant to return to India at the end of her proposed stay given that the subclass 309 visa, for approval, requires the visa applicant to be offshore at the time of approval.

20. The review applicant explained to the tribunal that his wife wishes to come to Australia to spend time with her husband to take in and try to understand the culture in Australia to see how people live, to travel with her husband, to live in the home that he is purchasing in Parafield in South Australia, and then to return to her home area in India at the end of the proposed stay.

21. The tribunal accepts the oral evidence that the visa applicant ordinarily resided with the review applicant's parents following their marriage in February 2017.  The tribunal accepts that the review applicant has returned to India on a number of occasions of approximately three weeks on each occasion, including February/March 2017, August/September 2017 and March 2018 where he has resided with his wife in his parents' home in Chandigarh living as a couple.

22. More recently the visa applicant has resided temporarily with her parents in Punjab State, as a result of some recent gynaecological surgery whereby the visa applicant’s parents were in a better position to offer support during her period of her convalescence.

23. The review applicant explained that the plan is for his wife to return living with his own parents, in accordance with their custom and traditions, pending his wife’s approval to come to Australia temporarily.

24. The visa applicant also has three other siblings residing in India and the review applicant described the family as being ‘close’, which the tribunal accepts.

25. The tribunal carefully observed the evidence provided by the review applicant at the hearing and considers this was provided in a straightforward and spontaneous manner without any attempt to avoid questions, embellish or otherwise suggest a lack of credibility.  For this reason, the tribunal accepts the review applicant's evidence as credible.

26. The tribunal places substantial weight on this evidence and accepts that, in discussions with his wife, there is no intention for her to work in Australia as she is here to spend time with her husband and to travel and be with her husband.  The tribunal accepts that although she has certain skills from completing a Master of Performing Arts qualification, and is an accomplished singer, she is not registered to teach in any such area in Australia, nor has she any desire to undertake any training during her visit in Australia for such a purpose or any other training, noting that the period of her visit is, in any case, not proposed to be beyond three months.

27. For these reasons the tribunal accepts that the visa applicant will comply with condition 8101 ‘must not work in Australia’ and also condition 8201 ‘must not engage in study or training in Australia for more than three months’.

28. The tribunal also accepts the oral evidence provided, that there is no reason why the visa applicant would not be able to return to her homeland in India at the end of the proposed stay, and there is no suggestion of any reasons of protection or complimentary protection that would prevent her return to her homeland or make her return difficult.

29. The tribunal places substantial weight on the aforementioned factor, that in order for the subclass 309 partner visa to be approved, the visa applicant must be offshore at the time of approval.  This, in itself, acts as a very strong incentive for the visa applicant to return to her homeland at the end of her proposed stay pending the outcome of the partner visa application, so as to not prejudice the approval of that visa.

30. The tribunal also places weight on, and accepts, the oral evidence that the visa applicant intends to comply with all conditions of her visa, again so as to not prejudice or provide any risk for the approval of her pending partner 309 visa, or any subsequent visit to Australia.

31. The tribunal considers that these factors act as a very strong incentive for the visa applicant to not remain in Australia after the end of the permitted stay and to comply with all visa conditions.  Indeed the tribunal notes the declaration made by the visa applicant on her visa application and considers overall, that the four conditions aforementioned would all be complied with by the visa applicant, and that she will return to her home area in India at the end of her proposed stay.

32. The tribunal has also considered other relevant factors, under clause 600.211(c).  This includes that the review applicant and the visa applicant share a joint banking account with the State Bank of India Patiala, that has a balance of approximately $6,500 and has maintained such a balance for approximately the past year or so.

33. Furthermore, the review applicant is working as a head baker for Costco for which he earns a salary of approximately $70,000 per year and has other savings in the order of $20,000 with which to provide for airfares (including the return fare to India) at the end of the proposed stay, and also the costs of accommodation, food, travel and other necessary expenses for the proposed visit by his wife of up to three months in Australia.

34. The tribunal has also considered the recent surgery for which the visa applicant is still convalescing and that she is living at her parents' home.  The Tribunal accepts the oral evidence that she has been reviewed by her gynaecologist and, according to the review applicant, has been provided with the ‘all clear’ presently - although there is some small possibility that she may be required to be (medically) reviewed further down the track.

35. This medical assistance has been provided completely in India, in the visa applicant's home area, and would act as some incentive for her to maintain access to such services that she is familiar with, if the need arose down the track.  The tribunal places only little weight on this, given the review applicant's evidence that the surgery has settled and there is no current plan for ongoing treatment.

36. The tribunal is satisfied that the visa applicant has independent means to ensure that she has financial resources to return to India at the end of her proposed stay of up to three months in Australia.  There is nothing from the financial information that would prevent the visa applicant from being able to undertake such a return, even if there was a falling-out between the couple, during her visit in Australia.

37. Overall, having considered all the relevant evidence before it discussed, the tribunal is satisfied, on balance, that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and therefore, finds that the requirements of clause 600.211 are met.

    DECISION

38. 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.

    Stavros Georgiadis
    Member