ANCHAL NARESH (Migration)

[2023] AATA 2803

ANCHAL NARESH (Migration) [2023] AATA 2803 (16 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms  ANCHAL NARESH

VISA APPLICANT:  Mr NARESH KUMAR

REPRESENTATIVE:  Mr Sourabh Aggarwal (MARN: 1462159)

CASE NUMBER:  2211819

HOME AFFAIRS REFERENCE(S):          BCC2022/581081

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 May 2023 at 2:40 am (WA time)

DATE OF WRITTEN RECORD:                17 August 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the 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 17 August 2023 at 11:55am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant and compliance with conditions – incentives to remain or return – previous compliant travel, as well as refusals and offer of security bond – house, pension and bank savings – cost of living – community activities – combined hearing with wife’s – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, condition 8531

APPLICATION FOR REVIEW

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD  [2.43 PM]

1. This has been two applications for review of two decisions. They were made by a delegate of the Minister for Home Affairs on 13 July 2022. The two decisions were to refuse to grant your two parents visitor visas. Your parents had lodged the visas on 10 March and 13 March 2022 respectively. At the time the visa applications were lodged, class FA contained one subclass, called subclass 600 Visitor. They applied for the visa, seeking to satisfy the primary criteria in the sponsored family stream, the criteria set out in part 600 of schedule 2 to the Migration Regulations.

1. Relevantly to their case, they include clause 600.211.  And that requires your parents to satisfy the Minister that they genuinely intend to stay temporarily in Australia for the purpose of which the visa is granted.  I said to you earlier today that I had read the two decisions.  I am not going to read them both out.  I will read the decision in relation to your father.  Now, the delegate says that they took into account the information provided in your father’s application form and the supporting documents.  But on balance found that he:  ‘had not demonstrated sufficiently strong employment, economic, family or other commitments in India that would be sufficient incentive for him to return to India.’

1. More specifically, the delegate said that they have considered your dad’s economic circumstances and noted that he had provided some evidence of financial standing, however the amounts and assets cannot be considered significant in the context of overall economic employment conditions and the costs of living in India.  I noted on my file here the word, ‘why’.  Because it is not clear to me what that really means in their terms.  In any event, they were the reasons.  In relation to your mother, there was one extra aspect, and that was the fact that she had ownership of property which was a further consideration.

1. Now, I said to you earlier today that I am not bound to accept any of the reasons of the delegate.  I must make my own assessments, make my own findings of fact.  But of course, I must make my own decisions, and I will do so.  You appeared earlier today to give evidence and present arguments.  I had the ability to have spoken to both your parents.  They did appear at the beginning of the hearing today; they were affirmed.  Of course, I spoke to you first.  I told you that I did not see there being any benefit in speaking to your parents because I had spoken to you and I had reviewed all the documents.

1. The hearing was conducted with the assistance of an interpreter in the Punjabi and English language, but that person was not needed.  You were, of course, represented by Mr Aggarwal.  Now, I explained during the introduction that the issue for me is whether clause 600.211 is met.  And that requires me, as the tribunal, to be satisfied that your two parents generally intend to stay temporarily in Australia for the purpose for which the visa is granted.  Having regard to whether they have complied substantially with conditions to which the last substantial visa or any subsequent bridging visa held by them was subject, and whether they intend to comply with conditions to which the subclass 600 visas would be subject, and any other relevant matters.

1. You satisfied me at the beginning – subjectively assessed – that your parents wished to come to Australia to see you and your husband and child, and likewise your brother, who lives not too far away, and his child and wife also.  You satisfied me that your parents do not have any business interests in Australia and they do not have medical conditions for which they would seek a medical treatment visa.  So, subjectively assessed, I am satisfied as to the purpose for which the visas are being sought.  Now, I must also consider whether your parents have complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa.

1. Now, your father has been to Australia twice prior to 2019 and your mother once.  I have had access to departmental information and I have not identified any information of concern by the Department as to their conduct and compliance whilst onshore in Australia.  I do know that there were a couple of visitor visas refused after those visas, but there is no information before me as to the reasoning behind that.  Listening to you today, it seems that they were rejected for substantially the same reasons as this.

1. There is no evidence before me that they have not complied, so I am going to give sufficient weight to their previous compliance.  In relation to conditions, the conditions would be 8101, they must not work.  Now, your father is 70, your mother is a bit older – 73.  They have been retired for many years now.  It is extremely unlikely that they would work in Australia in my view.  8201, must not engage in study or training in Australia for more than three months.  Based upon your parents’ work history, although they are educated people – but based upon their age it is highly unlikely that they would come here and engage in any study or any training.

1. 8503:  ‘Not entitled to a substantive visa other than the protection visa whilst remaining in Australia.’  You have sought to persuade me that there are no reasons for your parents fearing for their safety back in the Punjab or home area back in India for which they would seek a protection visa or visas.  I have accepted you on that basis.  You tell me there are no plans and your parents have not applied for any other substantive visa such as a parent visa, contributory parent visa and so forth.  I sensed you were being genuine in those answers and I accept that you mean what you said.  The main thing really is condition 8531:  ‘Must not remain in Australia after the end of the permitted stay.’  And that is what I am going to concentrate on here.  So that gives the background to the hearing today, and also the considerations that I have got to make.

1. As I have said to you, I was aware of your travel history generally.  You came here on a student visa.  You were granted that visa on 25 May 2013, you arrived on 17 July 2013.  You have come and gone a few times.  It seems that on 20 April 2015 you were granted an 820-partner visa, of course, through your husband at the time – well, he is still your husband, sorry, but your husband’s status at that time.  You were granted an 801 visa on 7 July 2017 and you because an Australian citizen on 26 January 2020.  It seems to me from the records you have not departed Australia since 27 March 2018.  And that is something of some relevance to my considerations.

1. I think wisely you consented to having a joint hearing, although there were two separate applications.  That has made sense.  There were documents submitted recently.  I have read all of those documents.  There were written submissions of, I think there were six pages – yes, six pages – which I have considered.  Your representative points out prior visits by your parents and their compliance.  The fact of prior refusals in 2018, 2019 and 2022, that you are willing to put up a security bond or $27,000.  Of course as the tribunal I cannot pursue that.  That is something between yourself and the Department.

1. There were quite a lot of documents provided with your representative’s submissions, including the fact that you have been working with the Royal Automobile Club of Queensland in a Member Engagement Consultant role for a couple of years now.  I accept that you are.  The financial evidence presented includes information with respect to both yourself and your two parents.  Including information about monthly pensions, bank balances in bank accounts in India, your own bank accounts here in Australia, your own rates notices and payslips, and so forth.  And there were a number of affidavits also supplied.

1. I had access to your parents’ copies of passports.  Those passports tie into the information that you have given.  Your parents both provided affidavits, which appear to be dated back in 2022.  There was a letter from the Savings Bank of India dated 16 February 2022.  They related to bank accounts relating to your mother.  I think there were three bank accounts, and it sets out the amounts that were being held.  The total of all account amounts as of that date were rupee 5,76,174.  The letter confirmed that your mother is a retired Punjab government pensioner.

1. There was such a lot of financial related documents.  A lot of them related to 2021, some to 2022.  But in relation to both parents, there was sufficient evidence provided to satisfy me about their holding accounts but also the receipt of amounts – regular amounts – by way of pension in India.  I accept those documents to be genuine.  They do satisfy me that your parents still continue to have regular sources of income, albeit it through pension.  There is also a similar letter from SGI in India, dated 16 February 2022.  That relates to your father.  He also operates the three accounts.  A total of rupees 6,73,174.  Now, I think your representative actually converted those amounts into Australian dollars, and I have seen those amounts.

1. Now, of particular significance to me was the property and house which is owned by your mother.  There was an evaluation conducted on 16 February 2022.  The valuer inspected the property on 15 February 2022.  Now, the valuation indicates there are two registered deeds of the area, and that your mother at some stage sold an area of about 10 marlas.  The present area is now 15 marlas.  Now, there is both land and a freehold residential building.  The location is Uttam Garden Colony, Manwal, Panthankot, Pin Number 145001, Punjab in India.

1. There are photos with people who appear to be your parents.  I saw your father and your mother earlier today, and that appears to be photographs of them – of a front view, and side view, also.  The valuation sets out the technical facilities, the infrastructure of the property and the materials with which the property has been made.  I am satisfied that your mother does own that property.  I was interested to know from you as to why it was that your mother was included as the owner, and you sought to explain that to me, that it was more so by way of love or by way of a gift situation between the two.

1. There was a letter from you, 3 March 2022.  You pointed out at that stage that you were really missing your parents, that they wanted to see you and also your brother, Atul Kumar.  That you and your Atul are their own children and they want to spend some quality time with you.  I have seen your payslips, the rates in relation to your premises as well.  There is a further letter from the State Bank of India – I think I said the Savings Bank before, but it is actually the State Bank of India – confirming in relation to your mother that she is drawing a pension of rupees 16586 via the account number which ties in with what else I have seen.

1. And the same as in relation to your father as well.  So, it is pretty clear to me that both your parents have a reliable and regular source of income.  I am not going to go through all of the other evidence.  I should say though that in preparing for today I did a comparison of the costs of living between Australia and India – of course, it really depends where you live.  So these are generalisations.  But the consumer prices in India are on average 71.8 per cent lower than Australia.  Consumer prices including rent in India are 76.5 per cent lower.  Rent is 86.6 per cent lower.  Groceries are 68.7 per cent lower as well.

1. So when we talk about the cost of living in a particular area, I think I need to bear in mind it is much cheaper generally to live in your home country compared to here.  I have done some research also in relation to the security situation generally in the Punjab.  But particularly in the area of Panthankot.  It is fair to say that last year there were some uprisings in the Pathankot area which were quite concerning.  But I think other than that the previous uprisings of concerns were back in 2016 or so.  So I do not assess there being particularly security issues that would be incentives for your parents to overstay at the moment.

1. We spoke today – I am not going to simply repeat everything you said – you came across to me at least as being quite spontaneous, quite genuine in what you said.  One piece of information you gave me that I was not aware of at that stage was that you said that your father had retired in 2012 and since then he has occupied himself as being president of the Pensioners Association Union in his particular area.  And that was a very spontaneous answer.  And I have decided I should give that some degree of weight also in that he has responsibilities towards others as well.  You sought to persuade me that your parents have not formed a plan to seek parent visas if they come on shore in Australia also.

1. My overall assessment in this matter is this, and that is it has been a long time since you have seen your parents.  I think it may well be even six or seven years at least since you have seen your parents.  Of course your child – your son – is much older.  They have had very little or next to nothing involvement.  I assume that they would be talking to your son through electronic media and things like that, but it is not the same as being present in the same place as their grandchild.  And the same applies to your brother and his child as well.  It would be normal to expect that there would be a great incentive for grandparents to spend time with their grandchildren, and of course their own children as well.

1. I have seen nothing in the Department’s file which causes me to have concerns about any particular problem with your parents.  It just seems that they – for reasons known to them – were not satisfied in the past.  But I have got a lot of information here which suggests to me that your parents – there is a lot of pull – I will put it that way – for your parents to go home.  Weighing all that up, individually and collectively, in relation to condition 8531 I assess that they would not remain in Australia after the end of the permitted stay if the visa was granted.

1. When I look at clause 600.211, I am satisfied that both parents do genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.  Arriving at that view, I have had regard to whether they complied substantially with past conditions, and they did do so.  And I am satisfied overall that they do intend to comply with the conditions to which the visa would be subject.  There are no other relevant matters.  So, that is the decision.

   END OF ORAL DECISION  [3.09 PM]

   Michael Judd
   Member

2. Michael Judd
   Member