1504250 (Migration)

[2015] AATA 3057

1504250 (Migration) [2015] AATA 3057 (6 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Manmit Singh

VISA APPLICANTS:  Mrs Rupinder Kaur
Mr Gurmeet Singh
Miss Ekamjot Kaur

CASE NUMBER:  1504250

DIBP REFERENCE(S):  BCC2015/844301

MEMBER:Alison Mercer

DATE:6 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 06 July 2015 at 3:59pm

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 16 March 2015 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 9 March 2015. At the time the visa applications were lodged, Class FA contained one subclass, subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied that they genuinely intended to stay temporarily in Australia.  The delegate acknowledged that the second named visa applicant had a business in India and that the first and second named visa applicant’s older child would remain in India while they visited Australia.  However, the delegate gave little weight to the visa applicants’ business ties as an incentive to return, given employment opportunities in Australia and the large disparity between salaries in India and Australia.  Moreover, the delegate was not satisfied that the visa applicants had the financial capacity to support themselves for a month in Australia, indicating that their intention might not be simply to visit Australia.

5. The Tribunal received a review application from the review applicant (the brother of the first named visa applicant) on 27 March 2015.  It was accompanied by a copy of the delegate’s decision and a supporting letter, in which the review applicant’s representative (his wife) clarified that the first named visa applicant and the review applicant were siblings (as the delegate had incorrectly found that the second named applicant and review applicant were siblings), that the second named visa applicant’s business was busy and he would only be able to spend a few weeks in Australia, and that the review applicant was willing to lodge a bond and that he and his wife would support the visa applicants financially for the duration of the proposed visit.  Also provided was an Australian bank statement for the review applicant and his wife indicating that they had a closing balance of approximately $88,500 as at 22 June 2015, and an Indian bank account in their name with a closing balance of Rs 57,80,000.00 (approximately AUD $121,500) as at 1 April 2015.

6. The review applicant appeared before the Tribunal on 6 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife Ms Taranpreet Kaur, and from the first named visa applicant by telephone from India. 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 matter should be remitted for reconsideration.

   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 applicants genuinely intend to stay temporarily in Australia for the purpose for which the visas are granted, having regard to whether the visa applicants have complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by them was subject; whether the visa applicants intend to comply with the conditions to which the subclass 600 visas would be subject; and any other relevant matter.

9. In the present case, the visa applicants seek the visas for the purposes of visiting family members in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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. It was not disputed that none of the visa applicants had previously travelled to Australia and so this consideration is not relevant in their case.

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.600.612):

    ·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.

13. Finally, the Tribunal must also consider all other relevant matters (cl.600.211(c)). The Tribunal notes that there is no legal definition of ‘all other relevant matters’ in the Act or Regulations.   

14. The Tribunal found the review and visa applicants to be credible, straightforward and detailed in their evidence.  The Tribunal made the following findings based on the oral and documentary evidence provided by the visa and review applicants:

    ·the first named visa applicant is a 36 year old female citizen of India.  She is the sister of the review applicant.  She is married to the second named visa applicant.  The first and second visa applicants have 2 children, a daughter (Sakirt) aged 5 and a daughter (Ekhamjot) aged 2 (the third named visa applicant);

    ·the first named visa applicant has 2 brothers who reside in Australia (the review applicant Manmit Singh, and Gurpreet Singh), and a sister, Jaspal Kaur, in India;

    ·the second named visa applicant has 2 sisters in India and 2 brothers in the United States;

    ·the visa applicants live in Nawan Pind in the Punjab with the widowed father of the second named visa applicant;

    ·the second named visa applicant owns and runs a business, Gurmeet Engg. & Aluminium Works in Kapurthala.  The business has been running for over 15 years and deals in gates, grills, shutters and aluminium doors;

    ·the first named applicant runs a boutique from home;

    ·for the proposed duration of the visit, the first and second named visa applicant’s older daughter will remain in India with her paternal grandfather so as not to disrupt her schooling, while their younger daughter, the third named visa applicant, will travel to Australia with her parents;

    ·the visa applicants currently have savings of approximately Rs 5,01,806 held in the Union Bank of India [approximately AUD $10,525], as at 19 June 2015;

    ·the review applicant is a 31 year old Australian permanent resident. He, his wife Taranpreet Kaur, and his brother Gurpreet  became Australian permanent residents through the skilled migration program;

    ·the review applicant and his wife have 2 children, a son Parnit, aged 5, and another son aged 3, Jasnit Singh Thind.  They live with the review applicant’s brother Gurpreet Singh in a large house in Dandenong South;

    ·the review applicant owns and runs his own business, Activa  Cleaning Services Pty Ltd, which is a commercial cleaning business. His wife and his brother Gurpreet also work in the business.  They have approximately $90,000 in savings in Australia at present;

    ·the visa applicants will stay with the review applicant and his family if they were granted the visas.  The review applicant will meet the visa applicants’ costs while they are in Australia, including their airfares to and from Australia. They plan to explore Melbourne and possibly visit the Gold Coast;

    ·although a visit of 1 month was originally sought, the visa applicants would most likely stay 2 to 3 weeks due to their business and family commitments in India;

    ·the original purpose of the current visitor visa application was for the visa applicants to see the review applicant and his family, and if possible, to be here for their nephew Jasnit’s birthday in April 2015.  Although the review applicant’s son’s birthday has now passed, they still wish the visa applicants to spend time with the review applicant and his family and see how they live in Australia; and

    ·they would particularly like to do so while the review applicant’s mother, Kulwant Kaur, is also visiting Australia.  Previously, the review applicant’s parents have visited Australia and complied with all visa conditions, as have his wife’s brothers Jagdeep Singh and Simranjot Singh, and her mother, Satinder Kaur.

15. The Tribunal notes the concerns expressed by the delegate regarding the economic disparity between India and Australia and the lack of evidence of the source of income of the savings funds held by the first and second named visa applicants.  However, having regard to the income tax certificate and banking records previously provided, the Tribunal is satisfied that the funds accumulated are primarily from the second named applicant’s business.  The Tribunal accepts the evidence of the first named review applicant that both her boutique and her husband’s business will be looked after by trusted employees during their relatively short absence in Australia if granted visas.

16. The Tribunal further accepts that, in any case, the majority (if not all) the costs of the proposed visit will be borne by the review applicant and his wife, and the Tribunal is satisfied from the documentary evidence provided that they derive a good income from their cleaning business and have substantial savings with which to pay the expenses for the visit and a bond if required to do so.  Given the above, the Tribunal is satisfied that the visa applicants would not need, or have an incentive, to work if he came to Australia for a visit of the proposed duration.

17. The Tribunal accepts that the review and first named visa applicants have a sibling relationship and that they both want the visa applicants to visit Australia to see the review applicant and his family and how they live here, as well as the review and first named visa applicant’s other brother in Australia, Gurpreet Singh. Although the visa applicants have not previously travelled outside India, the Tribunal gives weight to the fact that various members of the review applicant’s family and his wife’s family have visited Australia and that there is no evidence to suggest that they have not abided by their visa conditions during such visits or overstayed.  In particular, the Tribunal notes that the Department’s movement records show that the review applicant’s mother Kulwant Kaur is currently visiting Australia and that she and the review applicant’s father, Sukhdev Singh, previously visited in 2012, 2011 and 2010.  The Department’s movement records also indicate that the review applicant’s wife’s brother Jagdeep Singh currently holds a student visa but previously visited in 2014, 2009, 2008 and 2007, and that her younger brother Simarjot Singh, also currently studying in Australia, previously visited in 2013, 2012 and 2009-2010.  Her mother Satinder Kaur has visited Australia on 4 occasions between 2009 and 2014.  Again, there is nothing evidence to suggest that they have not abided by their visa conditions during such visits or overstayed.  While the Tribunal must consider the circumstances of the particular visa applicants in this case, it considers that the behaviour of family members in similar circumstances is a relevant consideration.  It also gives weight to the review applicant’s evidence that the visa applicants would abide by visa conditions and return at the conclusion of any visit so as not to jeopardise the ability to visit of other family members.

18. The Tribunal is satisfied that the visa applicants have strong family and reasons for returning to India, in the form of the first and second named applicant’s older daughter Sakirt, who will remain in India in order not to disrupt her schooling, and who will live with her paternal grandfather, the second named applicant’s father.  The Tribunal considers the presence of 1 of their 2 children in India to be a significant incentive for the first and second visa applicants to return with the third visa applicant. 

19. The Tribunal also gives weight, although to a somewhat lesser extent, to the fact that the first and second named applicants are the main people responsible for looking after the second named applicant’s widowed father.  The Tribunal accepts the evidence of the review applicant and the first named applicant that the second named applicant’s 2 sisters in India are married with their own responsibilities to their in-laws and do not live nearby, and that the second named applicant’s 2 brothers reside in the US, leaving the first and second named applicant as the main providers of support to the second named applicant’s father.  As discussed at the hearing, the Tribunal is satisfied that the first and second named visa applicants are principally responsible for his welfare, and will hire help to assist the second named applicant’s father for the duration of any absence.

20. The Tribunal raised with the review applicant and first named applicant at the hearing that the Department maintains statistics on overstay rates, and that the latest figures available to the Tribunal (as at 30 June 2013) indicated that the overstay rate of Indian nationals visiting Australia was 1.09%.  The review applicant and first named visa applicant separately noted that this was quite low, and reiterated that the visa applicants had no incentive to remain beyond the period allocated to them.

21. In relation to any other relevant matters, the Tribunal had regard to the Department of Foreign Affairs and Trade (DFAT) Smart Traveller advice for India, the latest advice (26 April 2015) advises travellers to exercise a high degree of caution due to terrorism and separatism in some areas.  However, the report does not identify the home area of the visa applicants as being an area to avoid, and the first named visa applicant told the Tribunal that she and her family had not encountered any problems there.  The Tribunal accepts this to be the case and does not consider conditions in India to be a disincentive to the visa applicants to return there.

22. Taking all of the above into account, the Tribunal is satisfied that the visa applicants 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

23. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Alison Mercer
    Member