1603555 (Migration)

[2016] AATA 4619

1603555 (Migration) [2016] AATA 4619 (2 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sarabjit Kaur

VISA APPLICANT:  Mr Sukhvir Singh

CASE NUMBER:  1603555

DIBP REFERENCE(S):  N16/12020341

MEMBER:Di Hubble

DATE:2 November 2016

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 02 November 2016 at 5:27pm

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 15 January 2016 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 12 January 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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). They include cl.600.211, which requires the visa applicant to satisfy the Minister that he 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 had not provided credible evidence of his income source, specifically, income tax certificates.

5. The review applicant, who is the visa applicant’s sister, sought review of the delegate’s decision on 16 March 2016.

6. The review applicant appeared before the Tribunal on 11 October 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The Tribunal found the review applicant to be a forthright, credible witness who gave evidence to the effect that:

   ·Her brother initially hoped to come to Australia for her 25th wedding anniversary in January 2016.  He now hopes to come in December 2016/January 2017 for her son’s birthday and her 26^th wedding anniversary.  He also wishes to do some sightseeing;

   ·Her brother is very busy because he is a farmer and he has his own dairy, so he can only come to Australia for 4 weeks;

   ·Her brother is 1 of 3 children.  She lives in Australia with her husband and their children but all of her brother’s other family members, including his wife and their 2 children, aged approximately 16 and 8, will remain in India during his visit;

   ·Her other brother, Jaswinder, came here in either 2011 or 2012.  He stayed for 2 months and went home before his visa expired.  Her mum also came here in 2008 or 2009 for 3 months and went home before her visa expired.  She guarantees that her brother will go back to India.

8. On 2 November 2016 the review applicant submitted:

   ·    A copy of the visa applicant’s income tax return for the 2015/16 assessment year, which shows total gross income of INR 235,962 and total exempt agriculture income of INR 233,098;

   ·    Evidence that her mother was granted a Subclass 676 Tourist visa on 26 November 2007; she arrived in Australia on 14 December 2007 and departed within her visa period on 12 March 2008;

   ·    Evidence that her brother, Jaswinder, was granted a Subclass 679 Visitor visa on 23 November 2010; he arrived on 21 February 2011 and departed within his visa period on 19 April 2011;

   ·    Evidence that the visa applicant was granted a United Kingdom Visitor visa on 27 July 2006; he entered the UK on 11 August 2006 and returned to India within his visa period on 12 September 2006.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 (cl.600.211(a)); whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)); and any other relevant matter (cl.600.211(c)).  The conditions to which a visa in the circumstances of this case would be subject are as follows:

   ·8101 – must not work in Australia

   ·8201 – must not engage in study or training in Australia for more than 3 months.

10. The visa applicant seeks the visa for the purpose of a family visit.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.  However, as the visa applicant has never previously held an Australian visa, cl.600.211(a) is not relevant.

11. In assessing cl.600.211(b) and (c), the Tribunal notes that the delegate was not satisfied the visa applicant had provided credible evidence of his income source, specifically he did not provide income tax certificates.  That evidence is now available to the Tribunal, along with the other evidence mentioned at paragraph 8.

12. The Tribunal considers that the presence of the review applicant and her immediate family in Australia would provide some incentive for the visa applicant to overstay his visa.  However, the Tribunal considers there are other factors that will increase his incentive to return to India in a timely fashion after visiting Australia, including the fact that:

    ·His wife and children live in India and will remain there during his visit to Australia;

    ·The visa applicant is well-established in India.  He is a farmer and has his own dairy from which he derives regular income.  He has assets comprised of various properties, cars and financial deposits;

    ·The visa applicant’s brother and mother have separately visited Australia in the last few years and both returned to India in a timely fashion.  Further, the visa applicant himself previously visited the United Kingdom and returned to India in a timely fashion.

13. 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

14. 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.

    Di Hubble
    Member