Cheema (Migration)

[2023] AATA 947

Cheema (Migration) [2023] AATA 947 (5 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Gurbeer Kaur Cheema

VISA APPLICANT:  Mr Bhupinder Singh Sidhu

REPRESENTATIVE:  Mr Girishkumar J Patel (MARN: 1794078)

CASE NUMBER:  2211187

HOME AFFAIRS REFERENCE(S):          BCC2022/1238591

MEMBER:Anne Grant

DATE:5 April 2023

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 05 April 2023 at 2:48pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – previous compliant family visits – previous student visa application – arrangements for farm management – expecting a child in home country – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 20 July 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 11 April 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 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 600.211, 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 they were not satisfied that the visa applicant intended to stay temporarily in Australia.  

5. The review applicant appeared before the Tribunal on 5 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by video from India. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister and her family, and attending a family memorial in honour of their mother.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

10. 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)).

11. The visa applicant has complied with the conditions of several visitor visas on visits to Australia.  He arrived on 10 November 2017, departing on 4 February 2018.  He arrived again on 4 March 2018 and departed on 29 May 2018.  He arrived on 22 June 2018 and  departed on 18 September  2018.  On all of these occasions, he departed Australia in accordance with the visa conditions.  The visa applicant said that he had been working since his father died many years ago, running the family farm.  He took a holiday in 2018, and he came back several times because there was more of Australia he wanted to see. At that time, he had a subcontractor who ran the farm in his absence, and his Uncle, who is also a farmer, could oversee things. 

12. The visa applicant also visited Australia again on 23 May 2019, on a visitor visa.  Prior to the cessation of that visa, he applied for a student visa on 21 August 2019.  He was granted a bridging visa on application for the student visa.  The student visa was refused, and he sought review of that decision, but later withdrew the appeal, and departed Australia on 30 July 2020.  The applicant gave evidence that he had, at that time, an intention to study and learn English because he had to leave school when he was still young and couldn’t pursue further education due to his father’s death.  Whilst in Australia, he took some English classes.  According to Departmental records, the bridging visa had a no-work condition but did not contain a ‘no study’ condition.  The applicant’s wife and daughter joined him in Australia for some of this period.

13. I asked the visa applicant who was taking care of the farm while he was outside India for 14 months in 2019 and 2020.  He confirmed that he employed a sub contractor to manage the farm while he was away.   

14. I noted that although the delegate had not referred to this long stay in Australia, it seemed like they may have been concerned that the visa applicant might have formed an intention to migrate to Australia, given that he had been in Australia for most of 2018, 2019 and half of 2020.  The applicant said that was not the case - he did think it would be good to study, but that was not to be. 

15. The visa applicant said that he could now only stay for a short period but he still wanted to come and see his sister, who has been struggling since their mother’s death, and commemorate their mother in a ceremony at her home.  He has his own savings and his sister will accommodate him and also financially assist him if it is needed.  However, he can’t stay as long as he has in the past because the cost of a subcontractor has doubled now due to inflation and he can’t afford to employ one any longer.  He farms wheat and rice.  He added that his wife is also six months pregnant with their second child.  His daughter is attending school.  When I asked if it would be okay for him to leave his wife in May or June this year, given that she would be close to the end of her pregnancy, he said that was why he would only stay for a short visit.  

16. Based on the information from the Department’s file, and the visa applicant’s evidence, (which I accept) I consider that he has always complied with the conditions of previous visas, both substantive and bridging visas.  I consider that this excellent migration history should be given significant weight in the applicant’s favour as supporting his expressed intention to visit Australia temporarily. 

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 600.612):

    ·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.

18. The applicant confirmed that he would comply with any and all conditions of the visitor visa if granted.  He noted that he has no intention of working or studying as he will need to get back to his wife and child, and to run his farm. I accept that the visa applicant intends to comply with the conditions to which the visa would be subject. 

19. The Tribunal has also considered all other relevant matters (cl 600.211(c)). I consider that the visa applicant has significant circumstances in India which provide him with a strong incentive to return in compliance with the visa conditions;  namely his family farm, his wife, the imminent birth of his second child, and his young daughter who is in school. He also has a sister (and nephew) who lives in India who he sees regularly.  I also observe that he has established a compliant visa history in Australia and that this should be given weight.  I consider that these factors greatly outweigh any incentives the applicant may have to stay in Australia in breach of any conditions of the visa.

20. The review applicant gave evidence that she has sponsored the applicant in the past, as well as her mother and her sister.  She and her husband have sponsored members of her husband’s family to visit Australia.  The people they have sponsored have always complied with their visas.  She confirmed that if her brother failed to comply with his visa conditions, then she was aware that this might impact on her capacity to sponsor other family members to visit in future and she was confident that there was no such risk. I give the review applicant’s sponsorship history some weight in this case.

21. I have considered and accept the evidence given by the review and visa applicants.  Having had regard to the various matters discussed above as required by subclause 600.211(a)-(c), I am satisfied that the visa applicant genuinely intends to visit Australia temporarily for the purposes of the visa.

22. 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

23. 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.

    Anne Grant
    Member