Yashmeen Kaur (Migration)

[2022] AATA 4301

Yashmeen Kaur (Migration) [2022] AATA 4301 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yashmeen Kaur

REPRESENTATIVE:  Mr Gagandeep Singh (MARN: 0964638)

CASE NUMBER:  2206570

HOME AFFAIRS REFERENCE:               BCC2021/180800

MEMBER:L. Symons

DATE:8 September 2022

PLACE OF DECISION:  Sydney

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 08 September 2022 at 3:44pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – Covid-19 pandemic – shut down of Australia’s international border – compliance with visa conditions – applied for a permanent visa for Canada – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 Home Affairs on 20 April 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 30 January 2021. 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 (Cth) (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 he was not satisfied that she genuinely intends staying temporarily in Australia for the purpose for which the visa is granted. On 5 May 2022, she applied to the Tribunal for a review of that decision.  

5. The visa applicant appeared before the Tribunal, via video, on 11 August 2022 to give evidence and present arguments. The Tribunal also heard oral evidence from her sister, Ms Gaganpreet Kaur Dhanjal. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The applicant was represented in relation to the review by her migration agent, Mr Gagandeep Singh, who attended the hearing via video.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

9. In the present case, the visa applicant sought the visa as she was unable to leave Australia because of the Covid-19 pandemic and resulting shut down of Australia’s international border. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

10. 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)).

11. In this case, the records of the Department indicate that the visa applicant first travelled to Australia on 19 August 2019 as the holder of a subclass 600 Visitor visa that was valid until 19 November 2019. She departed Australia on 6 November 2019. She returned to Australia on 13 March 2020 as the holder of a subclass 600 Visitor visa that was valid until 13 June 2020. She subsequently applied for a second subclass 600 Visitor visa and was granted this visa on 6 July 2020. This visa was valid until 12 March 2021. She applied for a third subclass 600 Visitor visa and was granted an associated Bridging visa on 30 January 2021. There is no evidence before the Tribunal to indicate that the visa applicant has not complied substantially with the conditions of the last substantive visa held or any subsequent Bridging visa.

12. 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 (mandatory condition)

    ·8201 – must not engage in study or training in Australia for more than 3 months (mandatory condition)

    ·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

13. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed her personal circumstances and the proposed financial arrangements for her stay in Australia. The visa applicant gave evidence that she a post-graduate qualification from Punjab University and graduated in 2015. She worked full time as a teacher between 2018 and 2019. She has savings of between 20,000 and 40,000 Indian rupees in India. She has no other assets and has no debts.

14. The visa applicant stated that she has been living with her sister and her family in Australia for almost 2 ½ years and her sister has paid for her living expenses. Her sister and brother-in-law are in paid employment. Her sister is prepared to continue to offer her free accommodation and pay for her living expenses in Australia. Her sister will also pay for her return airfare to India. She has not worked in Australia. She has no intention of working, studying or undertaking any training in Australia.

15. The visa applicant’s sister, Ms Gaganpreet Kaur Dhanjal, gave written evidence that she has been financially supporting all aspects of the visa applicant’s stay in Australia. During the hearing, she gave evidence that she works part time at Woolworth and earns between $700.00 and $800.00 per fortnight. Her husband works in a bakery and earns over $1,000.00 per week. She and her husband own a car and have savings of approximately $15,000.00. She has no debts. She has been paying for the visa applicant’s expenses in Australia and will continue to do so. She will also pay for her return airfare to India.

16. The visa applicant has provided the Tribunal with a copy of a National Australia Bank statement for a joint bank account in her sister and brother-in-law’s names showing a balance of $15,757.52 as of 1 August 2022.

17. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the proposed length and purpose of her stay in Australia. In her application for a Visitor visa, she applied for a multiple entry visa for up to 12 months from 15 December 2021 to 15 June 2022 for the purpose of a family visit. She stated that the purpose of her visa application was that she could not leave Australia due to the Covid pandemic.

18. The visa applicant gave evidence that she came to Australia in 2020 and has been stuck here since then because of the Covid pandemic. When asked why she did not return to India after Australia’s international borders were opened on 21 February 2022, she responded that she did not want to return to India until her AAT proceedings were finalised. She hopes that she will get a positive outcome. She hopes to get a visa for a further 2 weeks as she would like to visit Sydney. She will then return to India and hopes to do so without a “black spot” on her visa history.

19. The visa applicant’s sister, Ms Gaganpreet Kaur Dhanjal, gave evidence that she was unable to take the visa applicant sight seeing during her stay in Australia because of the lockdowns during the Covid pandemic. They had planned a trip to Adelaide but were unable to go there. She then changed jobs and did not have any leave. She would like to take the visa applicant sightseeing, during her child’s school holidays, before she returns to India.

20. The visa applicant requested and was granted further time after the hearing to provide additional documentary evidence. Following the hearing, the Tribunal received a statement in relation to Victoria School Holiday periods in 2022 which indicates that the Spring holidays are from 17 September 2022 to 2 October 2022. The Tribunal also received a copy of an email from Mann Travel confirming the booking of a one-way airline ticket in the name of the visa applicant from Melbourne to Delhi, India departing Melbourne on 4 October 2022.

21. The Tribunal has also considered other relevant matters. During the hearing, the visa applicant gave evidence that she has applied for a permanent visa for Canada, was requested to undertake a medical assessment and has done so. She would like to return to India and spend some time with her parents before she gets the visa for Canada. Following the hearing, she provided the Tribunal with a copy of a Tax Invoice from Bupa Medical Visa Services dated 25 May 2022. It indicates that she undertook a medical assessment for a Canadian visa on 25 May 2022.    

22. Having considered all the evidence, the Tribunal is satisfied that the visa applicant’s sister will support her financially during her stay in Australia and that the visa applicant will not undertake any work, studies or training in Australia. The Tribunal is also satisfied that the visa applicant will not remain in Australia after the end of her permitted stay. The Tribunal is therefore satisfied that she will comply with the conditions of the Visitor visa if granted the visa. 

23. 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

24. 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.

    L. Symons
    Member