Hardeep Singh (Migration)

[2022] AATA 4335

Hardeep Singh (Migration) [2022] AATA 4335 (7 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hardeep Singh Hardeep Singh

REPRESENTATIVE:  Mr Harpal Bajwa (MARN: 0955800)

CASE NUMBER:  2206209

HOME AFFAIRS REFERENCE:               BCC2021/104463

MEMBER:L. Symons

DATE:7 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 07 September 2022 at 3:46pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – intention to comply with visa conditions – personal circumstances – length and purpose of visit – financial arrangements for stay in Australia – immigration history – presence of close family members in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 Immigration on 8 April 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 to the Department of Immigration (the Department) for the visa on 11 January 2021. 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 Tourist 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 he was not satisfied that he genuinely intends staying temporarily in Australia for the purpose for which the visa is granted. On 27 April 2022, the visa applicant applied to the Tribunal for a review of that decision.   

5. The visa applicant appeared before the Tribunal, via video, on 17 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The applicant was represented in relation to the review by his migration agent, Mr Harpal Bajwa, who attended the hearing via video.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

8. The issue in this case is whether cl 600.211 is met. It 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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa 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 exploring Australia and as it is difficult for him to return to India because of the Covid-19 pandemic. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

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 records of the Department indicate that the visa applicant was granted a multiple entry subclass 600 Visitor visa on 2 August 2019 and that it was valid for 12 months. He arrived in Australia on 25 October 2019 and departed on 20 January 2020. He returned to Australia on 2 March 2020. On 14 May 2020, he was granted a Bridging A visa in association with his application for a second subclass 600 Visitor visa. On 13 July 2020, he was granted a second subclass 600 Visitor visa that was valid until 13 January 2021. On 12 January 2021, he was granted another Bridging A visa in association with his application for a third subclass 600 Visitor visa. There is inadequate evidence before the Tribunal for it to make a finding that he has not complied substantially with the conditions of the last substantive visa held or any subsequent Bridging visa.

12. 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 (mandatory condition)

    ·8201 – must not engage in study or training in Australia for more than 3 months (mandatory condition)

    ·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.

13. In considering whether the visa applicant intends to comply with the visa conditions, the Tribunal discussed with him his personal circumstances, the length and purpose of his visit, the proposed financial arrangements for his stay in Australia and his immigration history in Australia. He gave evidence that he is married. His wife, son (aged 7 years) and daughter (aged 2 ½ years) live in India with his parents, brother and sister-in-law. He initially stated that he worked as a farmer in India growing crops on land owned by his father. Later in the hearing, he stated that he lived and worked in Dubai for 5 years from 2009 to 2014 and lived and worked in Saudi Arabia for 2 years from 2016 to 2018.

14. The visa applicant stated that he has not worked in Australia and has spent his time here playing with his nephew and niece and going for walks. He does not own any assets in India or Australia. He has no savings and no debts. He is living with his sister and her family in Melbourne, Australia. His sister works as a nurse and his brother-in-law works as a taxi driver. His sister has provided him with accommodation and supported him during his stay in Australia and will continue to do so. She will also pay for his travel in Australia.

15. The visa applicant did not provide the Tribunal with written or oral evidence from his sister to indicate that she was willing and able to financially support him during his stay in Australia. He provided the Tribunal with a letter dated 17 August 2022 from the Commonwealth Bank which stated that Amandeep Kaur (his sister) had a bank account at that bank with a balance of $57,904.39 as of 16 August 2022.

16. Despite giving evidence that he had no savings, the visa applicant provided the Tribunal with a copy of a ‘Balance Certificate’ from the Axis Bank that indicated that he had a bank account in his name with a balance to 800000 Indian rupees as of 16 August 2022. This document did not have details of the bank’s address or contact numbers. He offered no explanation for the inconsistency in his evidence in relation to his financial circumstances. He also offered no explanation for why he could not support himself from his savings during his stay in Australia instead of relying on his sister to support him.

17. During the course of the hearing, the Tribunal discussed with the visa applicant why he had applied for three subclass 600 Visitor visas for lengthy periods of time between 2019 and 2021 and what he did in Australia during that time. He responded that he obtained a 12-month visa and came to Australia in 2019 to explore Australia. He departed Australia after 3 months and then returned in March 2020. When asked why he applied for a 12-month visa, he repeatedly responded that he got a 12-month visa. When asked what he did in the first 3 months he was in Australia, he responded that he did nothing much and just stayed at home. His family were busy buying a house. Subsequently the Covid-19 pandemic affected the country, there were no flights and they did not go outside. When asked why he returned to Australia in March 2020, he responded that he thought he would come back. When asked what he was planning to do here when he returned in March 2020, he responded that he had no plan and just wanted to “look around” the country.

18. The Tribunal asked the visa applicant why he applied for the second subclass 600 Visitor visa. He responded that he did not get a chance to travel in Australia, so he applied for a second visa. When asked why he applied for the third subclass 600 Visitor visa, he responded that he did not want to have his visa refused. When asked why he applied for a visa for 12 months, he responded that he got a 12-month visa and youngsters get 12 months visas. In his application for the third subclass 600 Visitor visa, he applied for the visa for up to 12 months because he was unable to book a return ticket to India easily, Covid-19 was spreading in India and he wanted to explore Australia more.

19. The Tribunal asked the visa applicant what travelling he has undertaken in Australia since he has been here. He mentioned three places in Victoria. When the Tribunal noted that he had not left the State of Victoria, he responded that he has been to Griffith. He then stated that he has been to so many places that he cannot recall their names. When asked what travelling he has done in the last 8 months, he responded that he just went to the city (of Melbourne) and mentioned a place on the border of Victoria and South Australia. When asked what other travel he wants to do, he responded that he wants to travel to Brisbane. When asked why he had not done so in the last 8 months, he responded that he was busy and did not get much time. When asked about the cost of his travel plans, he responded that he had no idea and his family will pay for it.

20. The Tribunal is of the view that the visa applicant’s evidence that he had travelled to Griffith, had been busy and did not get much time to travel to Brisbane in the last 8 months is significant. His evidence that he had no idea about the cost of travelling to Brisbane is also significant as it tends to indicate that he has not made any inquiries or plans to travel to Brisbane. Griffith is a regional city in the Riverina region of NSW which is commonly referred to as the fruit bowl of Australia. Griffith is a popular destination for people seeking work as fruit pickers. It is a strange choice of destination for someone who is only wanting to explore Australia.

21. The Tribunal would expect that if the visa applicant was based in Victoria and wanted to visit NSW, he would have chosen a destination such as Sydney that has many world-famous sites such as the Sydney Opera House and the Sydney Harbour Bridge that would attract international visitors to Australia. His visit to Griffith tends to indicate that he went there to work and that is why he was too busy to travel to Brisbane in the last 8 months.

22. The Tribunal raised as issues with the visa applicant his credibility and the truthfulness of his evidence in relation to how he has supported himself during his stay in Australia. He declined to respond. The Tribunal raised as an issue with the visa applicant the lack of evidence in relation to how he will be financially supported in the future during his stay in Australia. He declined to respond. The Tribunal raised as issues with the visa applicant its concerns that he will work in Australia to support himself in breach of a condition of the subclass 600 Visitor visa. He responded that he does not want his subclass 600 Visitor visa to be refused and wants it to be granted.

23. In considering whether the visa applicant intends to comply with condition 8531, the Tribunal has had regard to his incentives to return to India at the end of his permitted stay in Australia and his incentives to remain in Australia after the end of his permitted stay. When asked what incentives he has to return to India at the end of his holiday in Australia, he responded that he does not want his visa refused. He needs his visa to be granted. He does not want a bad record. He wants to return to Australia with his family. When asked again about his incentives to return to India, he responded that when his family ask him to return to India he will return to India. His response does not engender any confidence that he will not remain in Australia after the end of his permitted stay. 

24. The Tribunal is of the view that the presence of close family members in Australia, his ability to live with his sister and her family and to be supported by them offer strong incentives for the visa applicant to remain in Australia after the end of his permitted stay. When the Tribunal raised this as an issue with him, he declined to respond. 

25. The Tribunal has considered other relevant matters such as the visa applicant’s conduct in Australia and his immigration history. In his application for a Visitor visa, he stated that he applied for a visa for up to 12 months because he was unable to book his return ticket easily, Covid-19 was spreading in India and he wanted to explore Australia further. 

26. Country information indicates that on 24 March 2020 the government of India suspended all international travel with the exception of vehicles and aircraft carrying goods for trade or essential goods and supplies.[1] On 5 May 2020, the Indian Ministry of Home Affairs issued a Protocol for the movement of Indian nationals stranded outside their country. They were required to register with the Indian High Commission in the country they were stranded in. The Ministry of Civil Aviation then made arrangements for non-scheduled commercial flights to get Indian nationals back to India.[2]

    [1] ‘Closing of Immigration Check Posts for all incoming passenger traffic’, Government of India: Ministry of Home Affairs (Office Memorandum, 23 March 2020). 

    [2] ‘Standard Operating Protocol (SOP) for movement of Indian Nationals stranded outside the country’, Government of India: Ministry of Home Affairs (Order No. 40, 5 May 2020).

27. The visa applicant gave evidence that he did not register with the Indian High Commission in Australia or anywhere else to get a flight back to India. He also did not make any inquiries with the Indian High Commission in Australia. The Tribunal discussed the above country information with him and noted that it indicates that if he wanted to return to India, he had a way of doing so despite international borders being closed. The Tribunal noted that his evidence may lead it to the conclusion that he had no intention of returning to India at that time or since then. He declined to respond. His conduct leads the Tribunal to the conclusion that he had and has no desire to return to India.

28. The records of the Department indicate that the visa applicant was granted a multiple entry subclass 600 Visitor visa on 2 August 2019 and that it was valid for 12 months. He arrived in Australia on 25 October 2019 and departed on 20 January 2020. He returned to Australia on 2 March 2020. He then applied for a second subclass 600 Visitor visa. On 13 July 2020, he was granted a second subclass 600 Visitor visa that was valid until 13 January 2021. On 11 January 2021, he applied for a third subclass 600 Visitor visa for 12 months. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that his immigration history and his evidence to the Tribunal may lead it to the conclusion that he wants to live in Australia and is using Visitor visas to do so.

29. The Tribunal noted that the visa applicant’s immigration history may lead it to the conclusion that he does not genuinely intend to stay in Australia for the purpose for which the visa is granted. He responded that he could have applied for a Student visa and brought his family to Australia but did not do so. He does not want his visa to be refused. The Tribunal is not persuaded by this response. If he genuinely intends to return to India, he could have done so after international borders opened and restrictions were removed. He could have returned to India and still participated in a video hearing from India if he was concerned about a visa refusal on his immigration record.

30. Having considered all the evidence and for the above reasons, the Tribunal is not 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 not met.

    DECISION

31. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    L. Symons
    Member