Butta Singh (Migration)

[2018] AATA 2682

Butta Singh (Migration) [2018] AATA 2682 (25 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Butta Singh

VISA APPLICANT:  Mr Gurjeet Singh

CASE NUMBER:  1724320

DIBP REFERENCE(S):  BCC2017/3107288

MEMBER:Stavros Georgiadis

DATE AND TIME OF

ORAL DECISION AND REASONS:        25 June 2018 at 11:42 am (SA time)

DATE OF WRITTEN RECORD:               23 July 2018

PLACE OF DECISION:  Adelaide

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 23 July 2018 at 4:15pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Whether the applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa was granted – Strong incentives to return to home country – Family history of compliance with migration obligations – Where applicant has previous visa refusals – Review applicant willing to provide security – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, Conditions 8101, 8201, 8503, 8531

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 September 2017 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 25 June 2018 the tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The visa applicant applied for the visa on 28 August 2017. 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.

4. The criteria for a subclass 600 visa are set out in part 600 of schedule 2 to the Migration Regulations 1994. Relevantly to this case, they include clause 600.211, which requires the visa applicant to satisfy the Minister, or on review this tribunal, that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The delegate refused to grant the visa, essentially on the basis that the visa applicant did not meet clause 600.211, because the delegate was not persuaded or satisfied that the visa applicant had a genuine intention to visit Australia temporarily only, for the purpose for which the visa is granted.

6. The review applicant appeared before the tribunal on 25 June 2018, to give evidence and present arguments.  The tribunal also received oral evidence from the review applicant, who is the sponsor, and from the review applicant’s wife, Garanjit Kaur.

7. The tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8. The review applicant was represented in relation to the review by his registered migration agent, but the migration agent was not personally present at the hearing.

9. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

10. The following are the reasons, delivered orally at the hearing, for the decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether clause 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 the following factors.  Firstly, 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.  Secondly, whether the applicant intends to comply with the conditions to which the subclass 600 visa would be subject, and finally any other relevant matter.

12. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother’s family and in particular, to attend his niece’s birthday party, to be held in September 2018 and also to attend the house warming ceremony of his brother and his spouse’s home, in Nailsworth, which is expected to be completed in approximately October 2018. This (visiting a close relative) is a purpose for which a visa in the sponsored family stream may be granted, under clause 600.231.

13. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose set out above, that is, to visit a close family member, 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, as required under clause 600.211(a).

14. The oral evidence before the tribunal, which the tribunal accepts, is that the visa applicant has not previously travelled to Australia and indeed, not previously travelled outside of his home area in India, in Punjab.  For this reason, the tribunal has no evidence, either in support or counter to this factor and places no weight and makes any adverse findings in respect of this factor, given that the visa applicant has not previously travelled outside of India.

15. The tribunal must also consider whether the visa applicant intends to comply with the conditions to which the subclass 600 visa would be subject, as required under clause 600.211(b).

16. The conditions to which a visa in the circumstances of this case would be subject, include as follows, as set out under clause 600.612; condition 8101, must not work in Australia; condition 8201, must not engage in study or training in Australia for more than three months; condition 8503, no further stay and not entitled to a substantive visa, other than a protection visa, while remaining in Australia; and finally, condition 8531, must not remain in Australia after the end of the permitted stay.

17. The tribunal has had regard to the financial circumstances and the particular circumstances relating to the visa applicant. 

18. The tribunal accepts the oral evidence, as supported by documentary evidence, that the visa applicant has worked as a farmer in agricultural pursuits in the family farm in his home area in Punjab, in India. 

19. The visa applicant produced taxation records, under an Indian income tax return acknowledgement for the assessment year 2018/19.  This shows projected earnings for the 2018/19 financial year, which runs from March to the following March, in the sum of INR 350,860 or 3.5 lakh.  The oral evidence is that this equates to approximately AUD 7,200 and represents a comfortable living for the visa applicant and his family, comprising of his wife and two young children, in India.

20. From this, there are bank accounts provided and oral evidence, relating to accounts held by the visa applicant in the Punjab National Bank, of savings in the order of 2.6 lakh or approximating AUD 4,500.

21. The tribunal has considered that the visa applicant has family with whom he resides in the same household in India.  This comprises of his parents, both mother and father, who live in the same household, together with the visa applicant and his wife and two young children. 

22. The tribunal accepts the oral evidence from the review applicant and Ms Kaur at the hearing, that the visa applicant’s mother is presently visiting Australia, including visiting the sponsor of the visa applicant and residing in their household.

23. The oral evidence before the tribunal is that a number of members of the family have previously visited Australia and have returned at the end of their visits to Australia, in accordance with migration requirements and that the visa applicant’s intention is to do the same.

24. The evidence before the tribunal is that the visa applicant proposes to stay up to three months, but not beyond three months and that the visa applicant has sufficient means from his agricultural pursuits and savings, discussed above, to meet the costs of his travel to Australia, the proposed visit of up to three months and his return to India at the end of the proposed stay in Australia.

25. Despite the independent means demonstrated by the visa applicant, the review applicant, as sponsor, has indicated that his brother will be supported for accommodation and food and travel, for the proposed visit of three months, as he will reside in his brother’s home and is otherwise supported for the duration of the proposed visit.

26. The tribunal is satisfied that the visa applicant has sufficient means to meet the costs of his stay in Australia, for the proposed visit of up to three months and has independent means in any case, to return to India at the end of the proposed stay.

27. In respect of condition 8101, the tribunal is satisfied that the visa applicant has savings and independent financial means derived from his work in India.  The tribunal accepts the oral evidence that he has no command of English to speak of and will not seek any work in Australia, given that he has work to return to in India and also, that the purpose of the visit is to stay with his brother’s family and participate in those social events mentioned earlier, regarding his niece’s birthday and the house warming party of the soon to be constructed and completed home.

28. The tribunal also places weight on the oral evidence provided at hearing, that the conditions relating to the visa have been discussed and in particular, that the visa applicant must not work in Australia and must not engage in any study or training, noting that his visit is only for three months in any case, and the other conditions, and that he intends to return to India at the end of his proposed stay.

29. The tribunal places substantial weight on the fact that the visa applicant has been refused on two or three previous occasions, dating back to 2010 approximately, on the oral evidence before the tribunal. The Tribunal accepts that the visa applicant understands from discussions held with his sponsor and the sponsor’s wife, that he must comply with conditions on the visa so that he does not jeopardise any further opportunity to visit Australia in the future.

30. The tribunal considers this acts as a very strong incentive for him to comply with the conditions of the visa and to return at the end of the proposed stay, as indeed, a number of members of the visa applicant’s and sponsor’s family have done in the past.

31. Further to this, the oral evidence before the tribunal is that the sponsor is prepared to offer a bond, although this is not specifically required by the tribunal, on their understanding that the bond can be somewhere in the order of AUD 5,000 to AUD 15,000, if this is required. 

32. They explained to the tribunal that they are prepared to offer this, because they are very confident that the visa applicant will comply with the conditions of the visa, not overstay the visa and return at the end of the proposed stay, in accordance with his visa obligations and meet all conditions of his visa.

33. Having considered the evidence before the tribunal, the tribunal is satisfied that the visa applicant will not work in Australia and therefore meet condition 8101 and also, will not engage in any study or training in Australia for more than three months, noting in particular that the proposed visit is only up to a period of three months and will therefore comply with condition 8201.

34. In respect of no further stay and condition 8503, not entitling the visa applicant to a substantive visa, other than a protection visa while remaining in Australia, the tribunal accepts the oral evidence, that there is no reason why the visa applicant would not be able to return to India at the end of the proposed stay.  This is based on the oral evidence provided by the review applicant, that members of his family have left India and have been able to return back to India, without any hindrance and indeed, the sponsor himself and his wife, have been able to travel to India, from Australia, on previous occasions.

35. There is no suggestion of any political activity on the part of the family, or any other reason that could lead to a protection visa or complimentary protection, according to the evidence provided to the tribunal at the hearing, which the tribunal accepts.  In this regard, the tribunal is satisfied that the visa applicant will comply with condition 8503 of no further stay.

36. Finally, in respect of condition 8531, the tribunal accepts that the visa applicant will not remain in Australia at the end of the permitted stay, given the incentives mentioned above and in particular, placing weight on his very strong desire to comply with the conditions of the visitor visa, in order to not jeopardise any potential future visit, to Australia, given his relatively young age of 33 years.

37. Accordingly, the tribunal is satisfied that the visa applicant will comply with all the conditions to which the visa is subject.

38. Having considered the available evidence before it, including the other relevant matters discussed above, the tribunal is satisfied that the visa applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. 

39. Therefore, 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 clause 600.211 are met.

40. The formal decision of the tribunal then, given at 11.42 am, South Australian time, is as follows.

    DECISION

41. 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.

    Stavros Georgiadis
    Member