Vyas (Migration)

[2019] AATA 4102

Vyas (Migration) [2019] AATA 4102 (9 July 2019)

DECISION RECORD

DIVISION:        Migration & Refugee Division

REVIEW APPLICANT:  Mrs Vasiliki Vyas

VISA APPLICANT:       Mr Bhawani Shanker Vyas

CASE NUMBER:         1808668

HOME AFFAIRS REFERENCE(S):     BCC2018/630189

MEMBER:        Justine Clarke

DATE OF ORAL DECISION:   9 July 2019

DATE OF WRITTEN STATEMENT:   12 July 2019

PLACE OF DECISION:           Melbourne

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 12 July 2019 at 11:43am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – Tourist stream – genuinely intends to stay temporarily in Australia – visa to visit wife and family – complied with previous visa conditions – clear desire to comply with Australian immigration law – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, Conditions 8101, 8201, 8503, 8531

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 1 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. On 6 February 2018, the visa applicant—who is, at the time of this decision, a 34 year old national of India—applied for the visa. 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 visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist 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 review applicant is the visa applicant’s wife. She is a 56 year old Australian citizen residing in Perth, Western Australia.

5. The review applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted.

6. On 9 July 2019, the review applicant appeared in person before the Tribunal in Melbourne to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from India. The review applicant’s sister Ms Marie Dean was available and willing to give oral evidence by telephone from Perth but having heard the applicants’ evidence and having reviewed the documents that had been submitted, the Tribunal did not consider it to be necessary. The review applicant was represented in relation to the review by her registered migration agent and the representative also attended the hearing in person in Melbourne. 

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. The visa applicant seeks the visa for the purposes of visiting his wife (the review applicant) and other members of her family, particularly her aging mother and another family member who has cancer.

3. The written submissions that were filed with the Tribunal relevantly state:

   Although [the review applicant] has travelled a few times to visit her husband, she would really like him to be able to visit her in Australia. …

   [The applicants] both completely understand the limitations of a visitor visa but at this stage, they are happy to take when they can get and to be able to spend time with each other.

4. In his signed statement filed with the Tribunal prior to the hearing, the visa applicant expressed his desire to temporarily visit his wife in the following words:

   My wife’s health has deteriorated significantly due to the emotional stress and I have suffered tremendously from stress and depression. No words can describe the pain and loneliness we have both faced.

5. (The Tribunal notes a series of photographs that were submitted at the hearing, in support of this claim, which depict the change in the review applicant’s physical appearance from 2017 to 2019).

6. The claimed purpose is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

7. At the hearing, the Tribunal explained to the review applicant the requirements of cl.600.211 and the matters relevant to its assessment. The Tribunal told the review applicant that the primary issue for consideration was whether the visa applicant genuinely intends to visit Australia temporarily. The Tribunal also informed the applicants that the fact that the visa applicant had sought the review of the refusal of a Subclass 801 visa, rather than a Subclass 820 visa, meant that he did not have to be onshore for the grant of the visa. Further, the Tribunal impressed upon them that any failure by the visa applicant to comply with any visitor visa that may be granted to him may impugn his general credibility when the Tribunal considers the review of the decision to refuse his Subclass 801 Partner visa.

8. In assessing the issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s file as well as the oral evidence given at the hearing.

Clause 600.211(a)

1. 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).

2. The review applicant gave oral evidence that, previously, the visa applicant had travelled to, and lived in Australia and that he had not breached any conditions associated with the last substantive visa which he held. The Tribunal notes that it has reviewed the visa applicant’s movement records which evidence that he was granted a Subclass 820 Partner visa on 17 January 2013. There is no evidence before the Tribunal of any failure to comply with the conditions of the Partner visa; rather, to the contrary, the movement records evidence this visa as having been granted with no conditions.   

3. It is clear from the material that is before the Tribunal that it was the visa applicant’s failure to obtain a Bridging B visa before travelling on holiday to Bali with the review applicant—said to be because of miscommunication by the previous migration agent—that has precluded him from re-entering Australia.

4. The Tribunal considers that the review applicant’s oral evidence and the visa applicant’s movement records support the applicants’ contention that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of visiting his wife and other members of her family. The Tribunal gives weight to this evidence.

Clause 600.211(b)

1. 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).

2. The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(2)):

           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; and

           8531 – must not remain in Australia after end of permitted stay.

3. The Tribunal discussed each of these conditions with the review applicant and the visa applicant. Each person told the Tribunal that the visa applicant would comply with all conditions. The Tribunal accepts this oral evidence.

Clause 600.211(c)

1. The Tribunal has also considered all other relevant matters, pursuant to cl.600.211(c).

2. In the primary decision, the delegate expressed the view that the visa applicant had not provided evidence of sufficient personal, employment or financial commitments in India to demonstrate that he intends a genuine temporary stay in Australia. 

3. At the hearing, the Tribunal asked both the review applicant and the visa applicant questions to ascertain the factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay and those factors that would act as an incentive for him to return to India.

4. With respect to factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay, the Tribunal notes that the review applicant resides in Australia and that the visa applicant is awaiting the review in this Tribunal of the decision by a delegate of the Minister for Immigration to refuse his Subclass 801 Partner visa. These factors could be seen as strong factors that would encourage the visa applicant to remain in Australia rather than return to India after the permitted stay.

5. The delegate did not raise country information as a concern in the primary decision and no specific country information was discussed with the review applicant or the visa applicant at the hearing. 

6. With respect to factors that would act as an incentive for the visa applicant to return to India after the permitted stay, the Tribunal notes the written submissions that were filed with the Tribunal (ff.46–47) and the documentary evidence (ff.36–45) filed in support. It was submitted:

   The applicant is employed on a part time basis and assists with tax matters.

   His personal assets (as part of his mother’s will) include a house worth around approximately INR 1 Crore – AUD $207,000 and land is about 30 lakhs approx. AUD $62,201.

   …

   The applicant has his old parents and his three sisters and their extended family all settled in India.

7. The review applicant and the visa applicant both gave oral evidence about the visa applicant’s employment in India, his living arrangements and the presence of his immediate and extended family members there. The visa applicant told the Tribunal that he works two hours a day from Monday to Friday and he said that he earnt around 10,000 Indian rupees per month which he said was the equivalent of around AUD $200. He described this as an average salary in India. Both applicants told the Tribunal that the visa applicant’s employment was undertaken more to assist him have a purpose while in India rather than for income as he has family support in India and the currency exchange means that money earned from this employment cannot really be used to help support the review applicant in Australia. The visa applicant also gave oral evidence that he is to be bequeathed the family home upon his mother’s death.

8. The Tribunal does not consider the visa applicant’s employment or financial commitments in India to be sufficiently strong factors to encourage his return to India at the end of the permitted stay. Similarly, his personal relationships do not constitute a sufficiently strong factor, given that the visa applicant had earlier resided in Australia since February 2007 and his intention, as manifest from his application for the Partner visa, is to obtain a permanent resident visa in Australia.

9. However, both the review applicant and the visa applicant articulated a clear desire to comply with Australian immigration law. In the review applicant’s words, they wanted to do ‘everything by the book’. The Tribunal accepts the veracity of both parties’ oral evidence in this regard and it is for this reason, coupled with the visa applicant’s compliance with his most recent substantive visa, that the Tribunal does not share the delegate’s concerns but rather considers that the visa applicant genuinely intends to stay temporarily in Australia for the intended purpose.

CONCLUSION

1. 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.

DECISION

1. 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.

Justine Clarke
Member