Gurmehar Singh (Migration)

[2024] AATA 1462

Gurmehar Singh (Migration) [2024] AATA 1462 (20 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Gurmehar Singh

VISA APPLICANT:  Miss Gurnehmat Kaur

REPRESENTATIVE:  Mrs Gurpreet Cheema (MARN: 2217773)

CASE NUMBER:  2305753

HOME AFFAIRS REFERENCE(S):          BCC2022/5218794

MEMBER:Louise Nicholls

DATE:20 May 2024

PLACE OF DECISION:  Sydney

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 20 May 2024 at 10:35am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – visiting brother – genuine temporary entrant and compliance with conditions – review applicant’s cultural engagement ceremony – applicant close to completing degree and planning to continue with masters – only child still living with parents – previous student visa application refused because of fraudulent activity by agent without applicant’s knowledge – compliant travel to another country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant for the visa (the visa applicant) is a citizen of India and she is 22 years old. The applicant for review (the review applicant) is the applicant’s brother and he is an Australian permanent resident.

2. The visa applicant applied for a Visitor (Class FA) visa on 6 December 2022. She provided identity documents, educational documents, bank statements, a joint affidavit made by the visa applicant and family members, the review applicant’s statutory declaration, business documents and visa documents to support the application.

3. 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. 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. On 23 February 2023 a delegate of the Minister for Home Affairs refused to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 of the Regulations. The delegate was not satisfied that the visa applicant had a genuine intention to stay temporarily in Australia for the purpose of visiting her brother.

5. The review applicant sought review on 25 April 2023. He provided a copy of the delegate’s decision, the visa applicant’s academic results, bank statements, a copy of an invitation to an engagement event and catering invoices, copies of the visa applicant’s parents’ visa grants, financial, property and bank statements, flight itineraries (UAE) and the representative’s submissions.

6. The review applicant appeared before the Tribunal on 17 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence by telephone from India, with the assistance of an interpreter in the Punjabi and English languages.

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

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

   CONSIDERATION

9. 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.

   Background

10. The review applicant is 26 years and born in the village of Rangar Nangal in Punjab State, India. The review applicant’s parents and sister live in that village. His sister lives at home with her parents and is studying nursing science. The review applicant and his family are of the Sikh religion.

11. The review applicant’s parents own a farm and agricultural business in the village and they sell grain to various customers including government customers.

12. The review applicant arrived in Australia seven years ago and obtained a skilled Subclass 190 permanent residence visa. He operates a transport business which he operates for Hellofresh and is also studying for a master’s degree in nursing studies at the University of Western Sydney; he is in the last year of his course.

13. The review applicant and his partner are getting engaged and they have arranged a ring ceremony to take place in a Canberra restaurant on 10 August 2024. He provided copies of invitations and the catering invoice for the ceremony and reception. He stated that he is hoping that his parents and sister will come to Canberra for the ceremony which is an important event for him and his family. His partner’s mother and brother have been granted visas to enable them to attend the event. His parents applied for visitor visas and their visas were granted in December 2022, but his sister’s visa was refused. They did not travel at that time because they did not wish to leave the visa applicant, who is their only daughter, on her own in Punjab.

14. The review applicant and his partner plan to marry in India where their families large circle of relatives, friends and acquaintances will be able to attend. However, they wanted to celebrate their engagement and ring ceremony in Canberra so their friends could attend. The review applicant pointed out that rituals associated with the engagement were significant in the context of a Sikh wedding where family blessings and unity were important.

15. The visa applicant is 22 years old and living at home with her parents. She is currently studying for a degree in Nursing Science at Sri Guru Ram Das College of Nursing in Punjab and is in the last year of her course. She provided academic transcripts and documents to support this evidence. Her course is due to end in September 2024 and she then wants to pursue a Master of Nursing degree in India.

16. The visa applicant applied for a student visa for Australia in 2022 but her application was refused due to fraudulent activity by her education agent. When her visa was refused, she decided to continue nursing studies in Punjab State.

    Purpose and duration of visit

17. In the present case, the visa applicant seeks the visa for the purposes of visiting her brother. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.221 and cl 600.222.

18. The visa applicant is seeking to visit Australia for about 15 days. The visa applicant would like to spend time with her brother during the proposed visit and would stay with him in his home. The review applicant and visa applicant gave evidence they had a close bond and it was very important for them both that the visa applicant should be present for the engagement ceremony in August 2024.

    Travel and migration history

19. The review applicant gave evidence that he, his sister and some cousins travelled to Dubai for a holiday at the end of 2023 and he provided photographs to support this evidence.

20. His parents have not previously visited him in Australia because they had caring obligations for his grandparents. However, so that he could spend time with his family he has frequently travelled to India to visit his family. His parents were granted sponsored visitor visas in 2022 but chose not to travel at that time because they did not wish to leave their daughter behind.

21. The visa applicant applied for a student visa in 2022 and her visa application was refused. The review applicant gave an explanation of why her visa was refused and how disappointed the family were in the conduct of the agent who had been responsible for the refusal.

22. He stated the visa applicant was at the beginning of her third year of nursing studies in India. She had good results and English test scores. She applied to the University of Canberra to continue her studies and was waiting for a confirmation of enrolment document. They had paid fees to a migration agent and did not understand why they had not received the document. They were told not to be concerned as sometimes the universities make errors. They later found that the agent had lodged fraudulent documents to support the visa application and as a consequence the visa was refused. As a result the visa applicant decided to continue with her nursing studies in Punjab. She and the review applicant had discussed appealing against the student visa refusal, but they decided she should complete the degree in India given her good results up to that point in time.

    Compliance with conditions of last substantive visa.

23. 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)).

24. The visa applicant has not previously travelled to Australia and thus there is no evidence of non-compliance with conditions of the last substantive visa held, or any subsequent bridging visas.

    Intention to comply with conditions.

25. 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

    ·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.

26. The Tribunal outlined the conditions which would be imposed on a sponsored visitor visa if one was granted. The visa applicant stated she had no intention to work or study during the short period she intended to visit Australia. She stated she understood she was not entitled to a substantive visa while in Australia and gave evidence she intended to depart before the end of the permitted stay of any visa which she might be granted.

    Other relevant matters

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

28. The review applicant gave evidence that the visa applicant was a brilliant nursing student and had excellent academic results for the past three years. She has commenced her final year and needs to complete her exams in September 2024 and she will then be eligible for the degree in nursing science. She intends to study further, and she and the review applicant have plans to set up a nursing college in Punjab State. The review applicant stated he was almost finished his Masters of Nursing degree and his partner is studying mental health nursing.

29. The review applicant stated that the visa applicant was their parents’ only daughter and the only child remaining in India. He stated this served as a strong incentive for the visa applicant to return to India at the any of any permitted stay as she provides them with emotional and physical support and they provide her with family attention and care. She and her parents have a close bond and hope to be able to travel together to the review applicant’s engagement and ring ceremony.

30. His parents have their own farm and agricultural business and were financially secure with a good combined income. The review applicant and visa applicant provided property and business documents to support this evidence.

31. The review applicant gave evidence that the conditions in Punjab State were stable, and the family had no social or political problems in India.

32. The visa applicant stated that the ring ceremony was an auspicious occasion, and it was important for her to be present together with her parents.

33. She and the review applicant also gave evidence that they were aware of the importance of the visa applicant’s compliance with visa conditions and a compliant migration history in the event that the visa applicant or other family members sought further visitor visas in the future.

    Assessment of the evidence.

34. Overall, and taking into account all relevant factors, the Tribunal is satisfied that the visa applicant has a genuine intention to stay temporarily in Australia for the purpose of visiting her brother and attending his engagement ceremony in Canberra in August 2024.

35. The Tribunal has taken account of the visa applicant’s current circumstances, that is, she has almost completed her college degree in nursing science and expects to complete that degree after her final exams in September 2024. On the basis of the evidence provided to the Tribunal, this will provide a strong incentive for her to return to India by the end of any permitted stay. Further she has family ties to her parents as she is their only daughter and they rely on her for emotional and physical support and she relies on them for family attention and care.

36. The visa applicant does have a strong bond with the review applicant, but the evidence indicates he is getting married in the next year or so. In any event, the Tribunal considers that at the present time the visa applicant’s bonds with her parents outweigh the family ties she has with the review applicant.

37. The visa applicant was refused a student visa due to the fraudulent conduct of her migration agent. The review applicant provided this evidence to the Tribunal and the Tribunal notes it was not specifically mentioned in the delegate’s decision record. The review applicant and visa applicant have given an explanation, which in the absence of any contrary information from the Department or elsewhere, indicates that the visa applicant was not aware of the fraudulent conduct of the agent. Further the Tribunal does not consider there is evidence before it that the visa applicant or the review applicant were aware of the fraudulent conduct. The Tribunal notes the evidence that the visa applicant decided to continue with her studies in India after this incident. While the visa applicant previously had an intention to study in Australia, the evidence before the Tribunal indicates that the visa applicant currently has a genuine intention to stay temporarily in Australia for the purpose of visiting her brother and attending his engagement.

38. The visa applicant and his family are Sikhs and the current Department of Foreign Affairs (DFAT) Report on India[1] notes that Sikhs face a low level of official and societal discrimination and violence in Punjab State and that DFAT is not aware of violence or discrimination occurring elsewhere in India. The Tribunal does not consider that the security situation in Punjab State would act as an incentive for the visa applicant to remain in Australia. The country information available to the Tribunal indicates there is a stable situation for Sikhs in Punjab and more widely through India.

    [1] DFAT Country Information Report India September 2023

39. There is no evidence of non-compliance with previous visa conditions and the visa applicant has given evidence she will comply with the conditions imposed on any visa which might be granted.

    Conclusion

40. 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

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.

    Louise Nicholls
    Senior Member