Abbas (Migration)

[2023] AATA 3126

Abbas (Migration) [2023] AATA 3126 (13 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zia Abbas

VISA APPLICANT:  Mr Raza Abbas

REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)

CASE NUMBER:  2213267

HOME AFFAIRS REFERENCE(S):          BCC2022/2924561

MEMBER:Naomi Schmitz

DATE:13 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 13 September 2023 at 1:52pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant and compliance with conditions – visiting brother and sightseeing – savings, property, employment, wife and young children – siblings’ and parents’ permanent visa applications after arriving on temporary visas – previous compliant travel to other countries – country information – economy and health care – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 360(1)
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, Schedule 8, conditions 8101, 8201

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 30 August 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 28 July 2022. 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 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 the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

5. On 8 September 2022, the review applicant applied to the Tribunal for a review of the refusal decision and provided a copy of the delegate’s decision record to the Tribunal.

6. On 29 June 2023, the Tribunal invited the applicant under s 360(1) of the Act to appear at a Tribunal hearing by Microsoft Teams video-link commencing at 9:30 am (VIC time) on 14 July 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

7. In support of the application for review the representative provided various documents to the Tribunal including:

   a.The visa applicant’s SBI bank statement from 5 January 2023 until 5 July 2023 with a closing balance of INR559,056.21 (equivalent to AUD10,500);

   b.Accountant certificate regarding the visa applicant’s ‘net worth’ including two residential properties and one plot of land, cash referred to in [7a], and gold valued at INR500,000 equivalent to AUD9,400;

   c.Offer of employment from Bikkgane Biryani as a chef (visa applicant to commence on 24 May 2023, subject to a three month probation period, with a salary of INR29,700 per month equivalent to AUD557);

   d.Letter confirming previous employment at XERO Degrees as a chef from 14 February 2022 until 24 April 2023;

   e.One pay slip from current employment (with eight paid days in May 2023 with a net salary of INR6,708 equivalent to AUD126);

   f.One pay slip from previous employer Xero Degrees for March 2023 with a net pay of INR16,129 equivalent to AUD303;

   g.Visa applicant’s June 2023 taxation return, total income INR372,600 and zero tax paid (equivalent to AUD7000);

   h.The birth certificates of the visa applicant’s two children born in January 2020 and July 2023;

   i.Three property certificates of title in support of the visa applicant owning three properties;

   j.Statement of review applicant dated 6 July 2023; and

   k.Further Statement from review applicant dated 10 July 2023.

8. The review applicant appeared before the Tribunal on 14 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence from India. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

9. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. The visa applicant is a 38-year-old citizen of India. He currently resides in Delhi, India. He is a Shia Muslim. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother, the review applicant who is an Australian permanent resident. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222. At hearing, the visa applicant gave evidence that he wished to visit Australia as the review applicant’s wife would be giving birth to a baby girl in December 2023. This would be the first baby girl in their family in 40 years and therefore was a special family milestone which the visa applicant wanted to be present to celebrate. He also stated that he wished to undertake some sightseeing whilst in Australia including Sydney and Melbourne. The review applicant gave evidence of the same, adding that he had not seen the visa applicant since his last visit to India in May 2022.

13. At the time of application, the visa applicant requested a Visitor visa for up to three months, with a planned arrival date of 1 September 2022 and a departure date of 15 September 2022. At hearing, the visa applicant gave evidence that he would stay in Australia for approximately three to four weeks. The review applicant gave evidence of the same. The visa applicant confirmed he would be travelling alone, with his wife and two children remaining in India.

14. In the visa application, the visa applicant indicated that his stay would be self-funded and that he would be accommodated by the review applicant. In support the visa applicant provided various banking records, including a SBI bank account statement in the visa applicant and his father’s name containing a balance of INR52,608.25 on 12 July 2022 (equivalent to AUD987.34) and the review applicant’s ANZ bank account statement dated 3 March 2022 with a closing balance of AUD70,002.01.

15. At hearing, the Tribunal Member asked the visa applicant how the visa applicant would finance his stay. The visa applicant replied that he had personal savings and family in Australia who would provide financial support. The review applicant gave consistent evidence, stating the visa applicant had personal savings and that the review applicant could provide financial support if necessary, earning approximately $3,500 per week as a truck driver.

16. 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)). In the present case, the visa applicant has not previously travelled to Australia. Consequently, there is no demonstrated compliance or non-compliance with previous visa conditions upon which the Tribunal can use to assess whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

17. 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; and

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

18. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201 given he has applied for a Visitor visa for the purposes of visiting family and the short duration of the visit. The Tribunal is also satisfied based on financial information referred to in [7a] above and the viva voce (oral evidence) of the visa applicant and review applicant that the visa applicant has financial capacity to support himself without resorting to work and has the support of the review applicant if necessary.

19. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal has considered the purpose of the visit referred to in [12] above. This appears to be a valid reason to apply for a Visitor visa to Australia.

20. At hearing, the Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside India. The visa applicant responded that in 2015 he travelled to Iran and Iraq.

21. The Tribunal Member asked the visa applicant and the review applicant where the visa applicant’s family members reside, including in Australia, India and any other country. The visa applicant and review applicant provided an account of the visa applicant’s family composition which included the following:

a.     In Australia, the review applicant, the review applicant’s wife and son (with a second child due in December 2023), another brother who is an Australian permanent resident, with a wife and three sons and another sister who is an Australian permanent resident who is married and expecting her first child. The review applicant obtained his permanent residency as a result of working as a chef, as did the visa applicant’s second brother and his sister obtained permanent residency as a result of a spousal visa. The visa applicant’s parents are currently in Australia on bridging visas, having first arrived on Visitor visas in December and in February 2023 applied for an Aged Parent visa (Subclass 804) with the review applicant as their sponsor;

b.     In India, the visa applicant has a wife and two children and extended family including cousins, aunties and uncles and his mother’s relatives; and

c.     Extended family in Kuwait. 

1. The Tribunal has taken into account the incentives to return to India at the end of the visa applicant’s proposed visit. The visa applicant and review applicant relied upon the following factors:

   a.A wife who the visa applicant has been married to since December 2018;

   b.Two children aged approximately three years and two months old;

   c.Extended relatives;

   d.Property interests including a block of land and two investment properties, namely houses, earning approximately INR10,000 to INR15,000 per month (equivalent to AUD187-AUD281). The Tribunal Member asked the visa applicant whether he had any evidence to corroborate his claims of rental income. The visa applicant replied he was paid in cash and could not produce any evidence in support;

   e.Employment as a professional chef at Bikkgane Biryani LLP within a Hotel Bristol, Gurugram, Haryana commencing on 24 May 2023 and subject to a three month probation period. At hearing, the Tribunal Member asked the visa applicant to identify his salary deposits for his current job in his bank statements. The visa applicant identified one salary deposit on 16 June 2023 in the sum of INR6708 equivalent to AUD120; and

   f.The visa applicant has a stable and comfortable life, residing in his sister’s house with his wife and two children; and

   g.Bank savings referred to in [7a] above.

2. Under the natural justice provisions, pursuant to s 359AA of the Act, the Tribunal Member put to the review applicant his migration history, which disclosed that he first arrived in Australia on a Temporary Training and Research visa (Subclass 402) and subsequently applied for and was granted an Employer Nomination (Subclass 186) visa and as a result obtained Australian permanent residency. The Tribunal Member explained that this information would be a reason or a part of the reason for the Tribunal affirming the decision under review, as it may indicate that the visa applicant may wish to apply for a permanent working visa. The Tribunal Member explained the fact that the Tribunal Member was putting the information to the review applicant was not an indication that the Tribunal Member had made up her mind, rather the Tribunal Member was giving the review applicant an opportunity to respond. The review applicant was advised that he may seek additional time to comment on or respond to the information.

3. The review applicant denied that the visa applicant would apply for a permanent working visa. He sought to distinguish himself, stating that when he came to Australia, he was ambitious to create a career, expand his expertise and learn and wanted to travel. He claimed the visa applicant was different in nature and that he was happy living in India and did not want to settle anywhere else.

4. The Tribunal Member raised with the visa applicant, the oral evidence given by both the visa applicant and review applicant at hearing. This included the fact that the visa applicant has three siblings who are Australian permanent residents, two of which obtained permanent residency as a result of working as chefs. Given the visa applicant is also a qualified chef, the visa applicant was asked why he would not attempt to do the same and apply for such a visa as a means of staying permanently in Australia. This was also in light of the visa applicant’s parents recently applying for Aged Parent (Subclass 804) visas. The visa applicant claimed that he had ‘other plans’ and that if he had wanted to settle in Australia, that he would have done it much earlier in life and that he wished to start his own food related business in India. He claimed there was a ‘lot of potential’ given India has a very large population.

5. The Tribunal Member explained that as a relevant factor pursuant to cl 600.211(c), that the Tribunal may consider the situation of a visa applicant’s home country, India, as this may appear to be a disincentive to return. The Tribunal Member referred to the latest DFAT country information reports which discuss India’s economy, health care system and the impact the COVID-19 pandemic has had on India. The reports details that in 2019 the Indian economy suffered a slowdown with there being a lack of growth in wages and jobs. India’s economy has also been impacted sharply by the COVID-19 pandemic resulting in it entering into its first ever technical recession in the second quarter of the financial year of 2020 and 2021. The World Bank classifies India as a lower middle-income country. India’s health system faces a number of challenges, including a shortage of infrastructure such as personal protective equipment and testing regime and a lack of skilled health sector workers. The COVID-19 pandemic has placed strain on India’s health system, with the number of confirmed cases exceeding 9.2 million and with there being over 449,538 deaths. As of September 2021, globally India has the second highest number of cases and deaths from COVID-19. The Tribunal Member contrasted India’s economic recession, health care system and COVID-19 situation with Australia’s much stronger economy, better health care system and less COVID-19 cases and deaths and asked in light of these differences, why would this not be a disincentive to return.[1]

   [1] Department of Foreign Affairs and Trade Country Information Report – India dated 10 December 2019 and India COVID-19 Situation Indian Government Response to COVID-19 – Telangana and the COVID-19 crisis dated 8 October 2021.

6. The visa applicant responded that the COVID-19 situation in India was much better now and that during the COVID-19 pandemic all countries had undergone such hardships. He also claimed that the medical facilities in India were very good.

7. The same country information was put to the review applicant who responded that the COVID statistics needed to be viewed in the context of India having a population of approximately 1.4 billion people and indicated that India had done a great job recovering. He also claimed that there were good job opportunities. He however conceded that Australia did have a stronger economy and better health care. He finally submitted that the Visitor visa should be granted as the visa applicant had not seen his family for a long time and re-iterated that he would only stay in Australia for three to four weeks.

8. The representative made submissions to the Tribunal including that: the purpose of the visit was to mark the celebration of the birth of the review applicant’s baby girl; the visa applicant would stay approximately three to four weeks; the visa applicant had a strong incentive to return to India and had no intention of settling into Australia; he would not have planned having a second baby if he wanted to move to Australia; he has property in India; family and extended family and claimed that India was strong economically. He referred to a recent trade agreement, the fact that India supplied COVID vaccines to 101 countries and claimed Australia did not manufacture any and that most economies around the world had suffered during the COVID-19 pandemic.

   Findings

9. The Tribunal has considered all matters carefully. The Tribunal accepts that the visa applicant has a valid reason to visit Australia to see his brother the review applicant, two siblings and undertake sightseeing. The visa applicant has not travelled to Australia before and therefore there is no demonstrated history of compliance or non-compliance with previous visa conditions. Whilst the Tribunal accepts that the visa applicant has previously travelled to Iran and Iraq, limited weight is placed on this previous travel, due to the country circumstances in Iran and Iraq not being comparable to those of Australia, particularly politically and in terms of security, and given the visa applicant has no family that reside there on a permanent basis.

10. Whilst the Tribunal accepts that the visa applicant has a wife and two young children in India, along with extended family, the Tribunal is not satisfied that they constitute a sufficient incentive to return, noting that the visa applicant equally has a large family network who reside permanently in Australia, including three siblings and their spouses and children. The Tribunal further notes that the visa applicant’s parents are currently in Australia. Although they are on temporary bridging visas, they have both applied for permanent residency in Australia via the Aged Parent (Subclass 804) visa. This raises considerable concerns that the visa applicant may have an incentive to remain in Australia and make efforts to obtain permanent residency including applying for a form of working visa as the review applicant and his other brother have done, including using the same qualification and occupation as a chef. The Tribunal further notes that in the review applicant’s further statement dated 10 July 2023, he does not refer to their parents as family in India and does not rely on them as incentives to return.

1. The Tribunal accepts that the visa applicant owns property in India, however, is not satisfied that it constitutes a sufficient incentive to return. There is no evidence as to what income, if any, the visa applicant receives from his two rental properties or block of land, with the visa applicant claiming to receive cash-in-hand from the two properties. Even if the visa applicant were able to produce financial records, the Tribunal does not regard the income as significant. The Tribunal further notes that the visa applicant resides in his sister's home which she has been prepared to abandon for a life in Australia.

2. The Tribunal accepts that the visa applicant has savings, however, does not regard them as a strong economic incentive to return, given they can be easily withdrawn or transferred remotely from Australia. The Tribunal accepts that the visa applicant has recently commenced employment in May 2023 as a chef, however as the applicant has been employed for an extremely short period of time, limited weight is placed on it as an economic incentive to return. The Tribunal was also concerned by the fact that the visa applicant was only able to identify one salary deposit in his banking records despite claiming to have worked at his place of employment since May 2023 and the hearing being approximately two months after he commenced employment in July 2023. The Tribunal further notes that the applicant's former employment was also short term of approximately 14 months. The applicant’s income taxation return for June 2023 also places him in the second lowest income tax level in India. Overall, the Tribunal does not regard the visa applicant as having a longstanding employment record or that his employment constitutes a strong economic incentive to return. Whilst the visa applicant has future ambitions of starting his own food business, as no credible or reliable evidence was filed in support no weight is placed on these oral assertions.

3. In light of the visa applicant not having a longstanding work record, the visa applicant having a substantial family network who reside in Australia and mobile savings, the visa applicant may very well consider that he has better prospects of living in Australia and supporting his young family. This is particularly so given the recent economic downturn in India. For these same reasons, the Tribunal rejects the representative’s submission that the visa applicant’s wife would not have had a second child if he wished to remain permanently in Australia.

4. Thus, considering all these matters cumulatively, the Tribunal is not 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.

   DECISION

5. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

   Naomi Schmitz
   Member