1515430 (Migration)

[2016] AATA 4183

1515430 (Migration) [2016] AATA 4183 (26 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dilbag SINGH

VISA APPLICANT:  Mr Harpreet SINGH

CASE NUMBER:  1515430

DIBP REFERENCE(S):  BCC2015/3089996

MEMBER:Belinda Mericourt

DATE:26 July 2016

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; and

·cl.600.212 of Schedule 2 to the Regulations; and

·cl.600.231 of Schedule 2 to the Regulations.

Statement made on 26 July 2016 at 5:35pm

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 22 October 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 22 October 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa 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 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 visit Australia temporarily.

5. On 12 November 2015, the visa applicant’s brother/sponsor (hereafter referred to as the review applicant) lodged an application for review of the Department’s decision with the Tribunal.

6. The review applicant appeared before the Tribunal on 26 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The review applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

8. The visa applicant was born in 1985 in the Punjab, India and is a citizen of India. His parents and two sisters reside in India and one brother (his sponsor) resides in Australia. His religion is Sikh.He is single and has no dependents. He is not engaged to be married. At the time of application he stated that he was employed as the owner of a dairy/agricultural farm. He provided evidence to the Department of his parent’s ownership of the farm and his income and savings

9. The review applicant was born in 1987 in the Punjab, India and first entered Australia as the holder of a student visa (subclass 572) on 13 June 2009. On 5 April 2013 he was granted a Regional Sponsored Migration Scheme visa (subclass 119) as his wife’s dependent. He is married, has one child born in 2010 and is employed as a truck driver. He stated that he will provide accommodation for his brother during the period of his visit.

10. On 22 October 2015 the visa applicant lodged an application for a family sponsored visitor visa for a period of one month for the purpose of visiting his brother and his family. He provided evidence of his parent’s ownership of property and his own savings and that of his parents.

11. In the decision record dated 22 October 2015, the delegate stated that as the visa applicant’s employment is of a seasonal and unpredictable nature he did not give the same weight to this as stable and ongoing employment as an incentive to return to India. The delegate stated that the visa applicant had not provided evidence of any other significant ties to India they would induce him to return home within the validity of his visa. The delegate concluded that he was not satisfied that the visa applicant genuinely intended to visit Australia temporarily.

    TRIBUNAL HEARING

12. The review and visa applicants gave largely consistent evidence to the Tribunal which is summarised as follows:

13. The visa applicant is the joint owner with his parents of a dairy/agricultural farm on which he grows rice and wheat and has milking cows. He lives with his parents in their own home. His parents also work on the farm. On a dairy farm the work is not seasonal but constant throughout the year. The visa applicant and his parents employ 4-5 workers to assist them as the farm is quite substantial. The visa applicant stated that he earns a comfortable living from the farm as they do not pay rent or a mortgage. None of the visa applicant’s siblings share ownership in the farm as his two sisters are married and live with their husband’s families and his only other sibling is the review applicant who lives permanently in Australia.

14. The review applicant has lived in Australia since 2009. He entered Australia as his wife’s dependent. He has returned to India to visit his family three times in 2012, 2013 and February 2015. The review applicant told the Tribunal that when they lodged the application he hoped his brother could be present for his son’s sixth birthday celebration in May 2016. He also wanted to show him Sydney and the Blue Mountains and possibly visit a cousin who lives in Melbourne and who has a new baby.

15. The review applicant told the Tribunal that the only relative who had visited him in Australia was his mother who visited him at the time of his son’s birth in 2010. He thought that she stayed for about three months and returned to India before her visa ceased.

16. The visa applicant stated he wished to visit his brother for up to 2-3 months. He said he could leave the farm for up to 4-5 months if necessary as his father would manage it in his absence. The review applicant said that he thought his brother wanted to visit for about one month.

17. The Tribunal put to the review applicant that the application form specified a visit of one month from 25 October to 25 November 2015 which was both a shorter period and not at the time of his son’s birthday in May. Neither the review or visa applicants knew why these dates were specified. They both agreed that the visa applicant had applied for a three month visitor visa. The review applicant stated that he was able to take four weeks leave himself to spend time with his brother and his brother would leave ‘when he became bored’.

18. The Tribunal put to the applicants that there is a high non-return rate for young single men from the Punjab who had been granted temporary visas. Neither applicant was aware that this was an issue. The visa applicant stated he would definitely return before his visa ceased as he is committed to his farm and his parents as he is now their only child at home. He also has a girlfriend in India. He will inherit the farm and house when his parents pass away and he believes that he has a responsibility towards them. He earns a comfortable income from his farm and said he has a comfortable life there and no desire to live in Australia.

19. The review applicant stated that he is willing and able to pay a security bond of $5000 if required by the Department.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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.

21. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother and his family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

22. 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)).

23. The visa applicant has never previously travelled to Australia or applied for a visa to Australia and has no adverse migration history.

24. The review applicant (his brother/sponsor) entered Australia as the holder of a student visa and has no adverse migration history.

25. The visa applicant’s mother was granted a visitor visa (subclass 676) on 28 April 2010 and entered Australia on 13 May 2010. She departed Australia on 14 September 2010 before her visa ceased.

26. There is no information before the Tribunal that any members of the visa applicant’s family have any adverse migration history.

27. 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.

28. The visa applicant completed secondary school and has no further educational qualifications. He stated that he has worked as a dairy and agricultural farmer since he left school. He also works part-time as a mechanic as this is of interest to him, but has no formal qualifications in mechanics.

29. The Tribunal is satisfied that the visa applicant will not work or engage in study or training for the relatively short period of his permitted stay: 8101 and 8503.

30. The Tribunal is satisfied that the visa applicant is not entitled to a substantive visa, other than a protection visa, while remaining in Australia: 8503.

31. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

32. The Tribunal had regard to the relatively high non-return rate for persons from the Punjab area of India, particularly young single men and put this to the visa and review applicants. They were unaware of this and stated that the visa applicant only wanted to visit to see his brother in Australia and would return due to his commitment to the farm and his parents and because he had a girlfriend in India.

33. Taking the above evidence into consideration cumulatively,  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/not met.

34. The Tribunal is satisfied that the review applicant will be providing accommodation and paying for day-to-day living expenses for the visa applicant during the period of his visit and that the visa applicant has access to sufficient funds to support himself during the period of his visit.

    DECISION

35. 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; and

    ·cl.600.212 of Schedule 2 to the Regulations; and

    ·cl.600.231 of Schedule 2 to the Regulations.

    Belinda Mericourt
    Member