Bains (Migration)

[2021] AATA 5424

Bains (Migration) [2021] AATA 5424 (13 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Savita Bains

VISA APPLICANT:  Mr Vardan Bains

CASE NUMBER:  2006700

HOME AFFAIRS REFERENCE(S):          BCC2019/6477365

MEMBER:Naomi Schmitz

DATE:13 December 2021

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 600.232 of Schedule 2 to the Regulations; and

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 13 December 2021 at 11:02am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – Tribunal is satisfied that the review applicant is ‘settled’ – visa applicant and review applicant meet the definition of a ‘close relative’– the visa applicant genuinely intends to stay temporarily in Australia –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, Schedule 2, cls 600.211, 600.232

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 January 2020 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 4 December 2019. 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 visa 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 (Cth) (the Regulations). Relevantly to this case, they include cl 600.232, which requires the visa applicant to satisfy the Minister that the visa applicant is being sponsored by a settled Australian citizen or a settled Australian permanent resident who is at least 18 and;

   (a)A relative of the applicant; or

   (b)A relative of another applicant who is a member of the family unit of the applicant; or

   (c)A relative of another application in relation to whom the applicant is a member of the family unit.

4. Regulation 1.03 defines ‘settled’ to mean lawfully resident in Australia for a reasonable period. Under policy, two years (as at the time of the visa application) is considered to be a reasonable period.

5. In addition, Regulation 1.03 defines ‘close relative’ to include the spouse or de facto partner of the person, a child (including adopted child), parent, brother or sister of the person (and their ‘step’ equivalents).

6. The review applicant appeared before the Tribunal on 6 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence from Punjab, India.

7. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the visa applicant who is currently living in India and only able to provide evidence ‘virtually’. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams. No concerns were expressed by the review applicant or visa applicant about the hearing being conducted in this manner, nor was there any indication that the review applicant or visa applicant had any difficulty in understanding or responding to the questions being put during the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. After this matter was constituted to the Tribunal Member on 17 November 2021, the Tribunal wrote to the review applicant and requested updated information and records to be provided by 29 November 2021 including; evidence that the visa applicant is being sponsored in accordance with cl 600.232 by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and: (a) a relative of the applicant; or (b) a relative of another applicant who is a member of the family unit of the applicant; or (c) a relative of another applicant in relation to whom the applicant is a member of the family unit; a copy of the visa applicant’s passport ensuring that all passport country stamps are visible; an itemised list of all the countries the visa applicant has travelled to, if any, including the arrival and departure dates; evidence of the visa applicant’s current employment, if any, such as evidence of recent pay slips, taxation returns or bank statements identifying the relevant pay deposits/transactions; evidence of ownership of property, for example a certificate of title or rates notice and approximate value of property; if the visa applicant is currently leasing property, evidence of the duration of the lease, such as a lease contract; any updated information and records about the visa applicant’s assets and financial situation such as money in bank accounts, identifying the quantum in the financial statement; and any other information relevant to the visa applicant’s activities or commitments or relationships in his home country, including family, such as a marriage certificate and the birth certificate(s) of the visa applicant’s child/children.

10. On 23 November 2021 in response the review applicant provided the following; the review applicant’s two National Australia Bank account statements dated 26 November 2021 one containing $28,001.06AUD and the other $1,080.00AUD; the review applicant’s Victorian Learners Permit identification; the rate and valuation notice for the review applicant’s property; the review applicant’s Indian passport depicting her mother’s name Asha Bains and father’s name Ram Jit Singh at address H no 150 Phase 2 Mohali, India; the visa applicant’s Indian passport depicting his mother’s name Asha Bains and father’s name Ram Jit Singh of address H no. 308 Phase 3B1 SAS Nagar Punjab India; the review applicant’s notification of grant of her subclass 801 partner visa dated 10 April 2017; the visa applicant’s bank statement from the Punjab and Sind Bank between 1 January 2021 and 17 November 2021 with a closing balance of 215,680.26INR equivalent to  $4,000.00AUD; the visa applicant’s 2021 tax return showing a total net income of 337,834INR equivalent to $6,242.05AUD; the visa applicant’s pay slips between February 2021 and October 2021 and a submissions page where the review applicant responded to the Tribunal’s letter dated 17 November 2021.

11. The issue in this case is whether cl 600.232 is satisfied referred to in paragraph [3] above. The review applicant gave evidence that she is currently aged 32 years of age and is an Australian permanent resident who obtained permanent residency as a result of a Subclass 801 partner visa granted on 10 April 2017. In support she provided her visa grant notice, Indian passport and Victorian Driver’s licence depicting her date of birth. The Tribunal has also obtained the review applicant’s travel movement records and reviewed her Departmental file, which confirm the same and show that the review applicant has not departed Australia since 26 December 2016. Accordingly, the Tribunal is satisfied that the review applicant is ‘settled’ and at least 18, given she is currently aged 32 years of age, obtained Australian permanent residency on 10 April 2017 and has resided in Australia for a reasonable period.

12. The review applicant and visa applicant also gave evidence that they are close relatives of one another, namely brother and sister. In support they provided a copy of their Indian passports which depicted the names of their mother and father which were the same. The Tribunal Member noted that the addresses of their parents differed and raised this with the review applicant and visa applicant. In response they both stated that since the issuing of the review applicant’s passport (which is older than the visa applicant’s passport and now expired), that their parents have moved properties. The Tribunal accepts the visa applicant and review applicant’s evidence. The Tribunal is also satisfied that the visa applicant and review applicant’s passports constitute independent and credible evidence that they have the same parents and are therefore brother and sister. Consequently, the Tribunal is satisfied that the visa applicant and review meet the definition of a ‘close relative’ in Regulation 1.03.

13. The Tribunal has also considered 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.

14. The visa applicant is a 26-year-old citizen of India. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister who is an Australian permanent resident. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

15. The visa applicant requested a visitor visa for up to three months, with a planned arrival date of 20 December 2019 and a departure date of 10 January 2020.

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)).

17. 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.

18. 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.

19. 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 the financial evidence submitted that the visa applicant has sufficient personal savings to support himself. The Tribunal also accepts that he will be accommodated and financially supported by the review applicant and her husband during his stay in Australia. The review applicant provided various financial documents which the Tribunal accepts.

20. The Tribunal is also satisfied that the visa applicant intends to comply with conditions 8503 and 8531 which are discussed below cl 600.211(c) in the context of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

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

22. Firstly, the Tribunal has considered the purpose of the visit. The visa applicant gave evidence that the purpose of his travel is to visit his sister, her husband and nephew who reside in Melbourne. He stated that he has not seen his sister for approximately four years and explained it is difficult for the review applicant to fly to India due to having a young child. The visa applicant stated he planned to stay with his sister for approximately two to three weeks. The review applicant gave consistent evidence, adding that she had not seen her brother since 2016 when she returned to India. These are valid reasons to apply for a visitor visa to Australia.

23. Secondly, the Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside India. The visa applicant stated he has not undertaken any travel. Consequently, there is no record against which any weight can be given as to whether the visa applicant has complied with conditions on previously held visas.

24. Thirdly, the Tribunal has taken into account the incentives to return to India at the end of his proposed visit. The visa applicant stated that he is currently employed as a Sales Manager at Gopal Sweets Pty Ltd, which is a nationwide food and confectionary manufacturer, which also offers catering services and operates various restaurants. The visa applicant commenced his employment at Gopal Sweets in February 2021 and in support provided nine payslips which depict a monthly income of 27,500INR equivalent to $508.00AUD. His employment provides him with a stable and consistent income. The visa applicant was also able to identify each of his pay deposits on his bank statement and cross reference them with his pay slips which he showed to the Tribunal Member. The review applicant gave evidence of the same. The visa applicant stated he previously worked as a office assistance at Zinia Homes, a home builder real estate company for two and a half years which he left due to the COVID-19 pandemic. The Tribunal has considered the visa applicant and review applicant’s oral evidence. The Tribunal has also considered the financial evidence and is satisfied that the visa applicant’s employment provides a strong economic incentive to return.

25. The visa applicant stated another inducement to return was his family in India, including his parents who he resides with in Mohali Punjab, his grandfather and grandmother, two uncles, two aunties and various cousins. The visa applicant has another sister who is currently living in Australia, but on a temporary visa. He explained that as the only remaining child in India he needs to care for his parents. His father suffers from high blood pressure, back and sciatic nerve pain. He assists his parents by driving them to places and doing household chores. He also has a good circle of friends. The visa applicant is currently single and has never been married. He does not have any children. The visa applicant does not own any significant assets, using his father’s motor vehicle. The visa applicant has approximately $4000.00AUD in savings. The review applicant gave consistent evidence. The Tribunal accepts this evidence, and places some weight on the remaining family, friends and the visa applicant’s family role. Limited weight is placed on the visa applicant’s savings, as it could be easily withdrawn, transferred or accessed remotely from within Australia.

26. The review applicant gave evidence stating that her family has a good migration record and that if the visa applicant did not comply with his Visitor visa conditions, not only would it compromise the visa applicant’s future ability to travel to Australia, but that it would jeopardise the review applicant’s ability to sponsor future family members and therefore the visa applicant has a very strong incentive to comply. She also stressed that her family were law-abiding citizens and have obeyed Australia’s migration laws. This included the review applicant’s mother and mother-in-law who have both complied with the conditions of their Visitor visas to Australia.

27. After the hearing, the Tribunal Member obtained the travel movement records of the review applicant’s mother and mother-in-law. These records corroborate the review applicant’s evidence which show that the review applicant’s mother has been granted three Visitor visas and travelled to Australia a total of four times and complied with the conditions of her visas. Similarly, the review applicant’s mother-in-law has been granted three Visitor visas and one bridging visa and complied with the conditions of her visas. The Tribunal accepts the review applicant evidence and places some weight on the fact that the review applicant’s family have complied substantially with the conditions of other visas which may be a relevant consideration for cl 600.211(c).

28. The review applicant gave evidence that she would be prepared to lodge a security bond in the sum of $10,000AUD to $15,000AUD to guarantee the visa applicant’s return to India.

29. The Tribunal has also taken into account the situation of a visa applicant’s home country, India, which may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report, which discusses India’s economy, health care system and the impact the COVID-19 pandemic has had on India. The report 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

30. In response, the visa applicant acknowledged that COVID-19 has caused problems with the Indian economy, and even caused him to change his job, however he stated that his employment was stable and that life has returned to some normality, with him working onsite at his work office. He also stated that COVID-19 would not deter him from returning back to India as there would be no one left to look after his parents. He stated that he had received his first COVID-19 vaccine and would be double-vaccinated by the end of the week. The review applicant denied these issues affected her brother and did not believe they would act as a disincentive to return. The Tribunal accepts the visa applicant and review applicant’s evidence.

31. The visa applicant gave evidence that he did not have any well-founded fear of any form of persecution in India due to his race, religion, nationality, membership of a particular social group or political opinion. The visa applicant is a Punjabi of the Sikh faith, which DFAT assess as generally facing a low level of official and societal discrimination and violence. The review applicant gave evidence of the same. The Tribunal accepts the visa applicant and review applicant’s evidence. The review applicant also gave evidence of returning to India in 2016 to see the visa applicant and has no security concerns. The Tribunal notes that the review applicant obtained permanent residency through a Partner Visa Subclass 801 visa rather than a protection visa.

1. The Tribunal has considered all matters carefully. There are a number of factors in the visa applicant’s favour, including him having a valid reason to visit Australia. The visa applicant has not previously travelled to Australia and consequently there is no records from 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. The visa applicant has also not undertaken any other travel outside India.

2. The visa applicant is currently employed as a Sales Manager at Gopal Sweets, which provides a consistent income which the Tribunal places some weight on this as an economic incentive to return. The visa applicant also has a family in India and parents who he provides support and care to. The Tribunal places some weight on this family network as an incentive to return. The visa applicant has no property or significant assets. The Tribunal places limited weight on the visa applicant’s savings as they could be easily withdrawn, transferred or accessed remotely from within Australia.

3. The Tribunal is satisfied that the economic issues and COVID-19 pandemic have had little impact on the visa applicant and would not act as a disincentive to return and that the visa applicant does not have any fears of persecution. The Tribunal also notes that various members of the review applicant’s family have travelled to Australia on Visitor visas and have substantially complied with the conditions of these visas which the Tribunal places some weight on. The Tribunal accepts that if a security bond was required of the review applicant, the visa applicant would be highly motivated to ensure that he returns to India before the expiry of his visa due to financial hardship in losing a security bond caused to his sister, as well as adverse implications for future visa applications to Australia. The visa applicant and review applicant both presented as honest and credible witnesses. 

4. For the above reasons the Tribunal is satisfied that cl 600.232 are met. The Tribunal is also 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

5. 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 600.232 of Schedule 2 to the Regulations.

   ·cl 600.211 of Schedule 2 to the Regulations.

   Naomi Schmitz
   Member