1508707 (Migration)

[2015] AATA 3646

1508707 (Migration) [2015] AATA 3646 (11 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kamaljit Kaur

VISA APPLICANTS:  Mr Ajmer Singh
Mrs Gurbaksh Kaur
Miss Jasleen Kaur
Miss Karampreet Kaur
Mr Harshaan Singh

CASE NUMBER:  1508707

DIBP REFERENCE(S):  BCC2015/1669107

MEMBER:Chris Keher

DATE:11 November 2015

PLACE OF DECISION:  Sydney

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;

and the second named visa applicant meets the requirements of:

·cl.600.232(2)(b).

Statement made on 11 November 2015 at 3:23pm

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 18 June 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 5 June 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 first, third, fourth and fifth visa applicants did not meet cl.600.211 because the delegate was not satisfied the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visas are granted. The second visa applicant (the sister-in-law of the review applicant) was refused as the delegate found she did not meet clause 600.232 particularly the definition of a relative in regulation 1.03.

5. As a preliminary matter the Tribunal finds that the delegate did not apply clause 600.232 correctly. Whilst it is correct that the second named visa applicant does not meet clause 600.232(2)(a) she does  meet the requirements of  (b) and/or (c). Only one of (a), (b), or (c) needs to be met. This is consistent with examples given in PAM guidelines on how this clause is to be applied and interpreted. I find the second named visa applicant does meet the requirements of cl.600.232(2)(b).

6. The review applicant appeared before the Tribunal on 11 November 2015 to give evidence and present arguments. 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 review applicant is Mrs Kamaljit Kaur and the visa applicants are her brother  Mr Ajmer Singh, his wife Mrs Gurbaksh Kaur, and their young children Miss Jasleen Kaur, Miss Karampreet Kaur and Mr Harshaan Singh.

9. The review applicant is 37 years old and was born in India.  She is an Australia citizen and resides in Griffith. She has worked as a farm hand for the past 2 years and 6 months. She has a bank account with CBA. It had a balance of over $42,000 in April 2015. She has previously had the review applicant; his wife and their eldest child visit her in Australia in 2009. Her father also visited in November 2014 to January 2015. She has not seen her brother’s younger children.  She states she will support her brother and his family during their stay with her. She owns her own home in Griffith.

10. At hearing she explained that her brother owns a large farm in India and is financially well off. He has helped her in the past including with buying the property where she, her husband and their 2 children (12 and 10) reside. He helped her as her husband is unwell and unable to work. He also cannot drive and is forgetful. He has a condition since childhood that has progressed. She has had her father visit Australia about 5 times and each time he has returned within the period of his visa. Her uncle also visited and returned to India.

11. In explanation of why, as mentioned in the delegate’s decision, there was no mention of the prior unsuccessful visa applications of her brother, she said that he doesn’t speak English and had an agent assist with filling in the forms. Her brother told her that he did tell the agent about the unsuccessful applications though this was not entered on the forms. The agent was a new one and hadn’t been used for the prior applications as their usual one was away. The review applicant said she also is uneducated.

12. She said that her husband is also an Australian citizen and has lived here for about 16 or so years. Prior to this he lived in New Zealand for about 10 years, and had been sponsored there from India, along with his mother, by his sister. He was born in 1969.

13. She said that she guarantees the visit is genuine and pointed to the prior visits by other family members including her brother and the fact that her brother returned early last time to attend to his farming. She said the visit would emotionally support her as it is difficult for her and her two children with her disabled husband and they rarely can go out. She said that her brother and his family have no political, economic, social or any other concern in India that would prevent their return.

14. The visa applicants are her brother who is 40 years old, his wife who is 31 years old and their children aged 8, 4 and 1.5 years. They are citizens of India. They wish to visit Australia for 2 months and stay with his sister. They live in the Punjab. His father will remain in India. They state they will not study and will not work. He is a self-employed farmer and has been for over 20 years. His wife is a housewife.

15. His sister will financially support him and his family for their stay. He states (question 37) he has previously complied with visa conditions and has not had an application refused. He has provided a large bundle of documents with his application including:

    ·     family relationship forms;

    ·     family ration card; a land rental agreement (folios 56 to 58);

    ·     bank statements from Capital Local Area Bank dated 16 May 2015 indicating two accounts held with a balance of 528,423 rupee (equivalent to about AUD$11,500), and the other of about the same amount;

    ·     purchase agreements for farm produce for various months in 2014 and 2015.

16. 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.

17. In the present case, the visa applicants seek the visas for the purposes of visiting the review applicant (their sister, sister-in-law or aunt). This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

18. 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)).

19. There is no evidence of non-compliance with conditions of a previously held visa. There is evidence of compliance by the first named visa applicant his wife and their eldest child in 2009. There is also evidence of the father of the review applicant complying with his visa conditions more recently.

20. 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.

21. The applicants’ state an intention to comply with these conditions. They have complied before. I accept they will comply now.

22. The Tribunal has also considered all other relevant matters (cl.600.211(c)). As detailed above the visa applicant is a farmer from the Punjab. He has visited his sister previously in 2009 and complied with conditions then. He returned home after about a month, and his wife and child returned the following month. More recently his father has visited Australia and returned to India.

23. I note the delegate’s concern about non-disclosure of prior applications being refused; however note that following the stated 2009 one a visa was granted. I place significant weight on the fact that there has been prior compliance not only by the first named visa application and his wife but also other family members.

24. In explanation of why, as mentioned in the delegate’s decision, there was no mention of the prior unsuccessful visa applications of her brother, the review applicant gave an explanation. I accept that explanation as reasonable in the circumstances of their limited education and using an agent. It is also apparent that this is something that could be, and is, easily verified and so there can be little advantage in purposefully being misleading.

25. I accept the visa applicant and his family have the financial resources for the visit and note he has a steady income from farming and has accounts with over $23,000. He owns or rents farm land and has his elderly father remaining in India. I accept as true that the review applicant also has financial resources and accommodation for the family.

26. For the above reasons 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

27. 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.

    and the second named visa applicant meets the requirements of:

    ·     cl.600.232(2)(b).

    Chris Keher
    Member