Harpreet Kaur (Migration)

[2021] AATA 4419

Harpreet Kaur (Migration) [2021] AATA 4419 (18 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs  Harpreet Kaur

VISA APPLICANT:  Mr  Paramvir Singh

CASE NUMBER:  2004630

HOME AFFAIRS REFERENCE(S):          BCC2019/6698221

MEMBER:Naomi Schmitz

DATE:18 November 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 600.211 of Schedule 2 to the Regulations.

Statement made on 18 November 2021 at 11:42am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – full-time, ongoing employment in home country – work on father’s farm and plans to take over when he retires – care and support for parents and grandparents – previous compliant travel to another country by applicant and to Australia by other family members – applicant’s future travel and sponsor’s future sponsorships – offer of security bond – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 Home Affairs on 3 February 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 16 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 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 the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.  

5. The review applicant appeared before the Tribunal on 16 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence from Haryana, 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 by her registered migration agent. The representative attended the Tribunal hearing.

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 1 November 2021, the Tribunal wrote to the review applicant and requested updated information and records to be provided by 9 November 2021 including; a copy of the visa applicant’s passport ensuring that all  passport country stamps are visible; an itemised list of all 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, including recent evidence     of pay slips and taxation returns; evidence of ownership of property, for example a certificate of title/title deed or rates notice         and approximate value; if the visa applicant is currently leasing property, evidence of the duration of the lease; any updated information and records about the visa applicant’s assets and financial        situation such as money in bank accounts; and any other information relevant to the visa applicant’s activities, commitments  or relationships in his home, including family.

10. On 9 November 2021 the representative provided the following; the visa applicant’s current and expired Indian passports with country stamps; the visa applicant’s three previous New Zealand visas, including two Student visas and one Working visa; various bank statements from the State Bank of India between 1 April 2021 and 22 September 2021 with a closing balance of 2638.02INR equivalent to $48.00AUD; a letter from the visa applicant’s employer Springdales Public School dated 5 November 2021 confirming the visa applicants employment, salary and full-time and ongoing position; three previous tax returns for the years 2018-2019, 2019-2020 2020-2021 showing income from Springdales Public School, agriculture income from working on his father’s farm and other income; a HDFC savings bank account with a closing balance at 8 November 2021 of 651,486INR equivalent to $11,918.00AUD; the passports of the visa applicant’s parents and grandparents; a Diploma in Computing (Level 7) from the New Zealand School of Education and academic transcript Information technology education qualification from New Zealand; a property valuation report; an affidavit by the visa applicant’s father; and various financial documents showing the review applicant and her husband’s income.

11. 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.

12. The visa applicant is a 29-year-old citizen of India. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister, the review applicant who is a permanent resident of Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

13. The visa applicant requested a visitor visa for up to three months, with a planned arrival date of 10 January 2020 and a departure date of 30 January 2020.

14. 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)).

15. 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.

16. 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.

17. 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.

18. 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.

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

20. 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 niece currently aged 3 years of age who reside in Melbourne. He stated that his sister has recently purchased a house and his visit would provide an opportunity to see their family home. He planned to stay for approximately three weeks during the school holidays, with him having leave approval from his employer. The review applicant gave consistent evidence, adding the last time she saw her brother was in March 2020 when she visited India. Due to Indian quarantine health laws, she stated she unfortunately spent a large portion of her visit in quarantine and self-isolation and therefore did not spend quality time with her brother and only saw him for approximately three to four days. She therefore was looking forward to seeing her brother if granted his visitor visa to Australia. These are valid reasons to apply for a visitor visa to Australia.

21. Secondly, the Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside India. The visa applicant stated he has travelled twice to New Zealand, including on 2 February 2013 and 7 February 2017 where he stayed a total of four years. During this time he was granted two Student visas and one Working visa and was compliant with the conditions of all visas. The Tribunal places significant weight on the visa applicant’s substantial compliance with the conditions of all three New Zealand visas. The visa applicant also stated that he spent one night in transit in Thailand in 2017. The Tribunal places limited weight on this travel due to the short duration and the visa applicant not having any family members who reside in Thailand.

22. 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 has full-time and ongoing employment as a Network Technician working in a computer laboratory at Springdales Public School, which comprises of both a primary and secondary school. He has worked at the school for approximately four years which involves him resolving any technical issues and providing assistance including network connectivity, WIFI, hardware devices and managing the information technology database. He stated he works Monday to Friday earning 25,000INR per month equating to $300,000INR annually equivalent to $5,560.00AUD. The Tribunal understands this to be an above average salary in India.

23. The visa applicant also explained that he applied for the role whilst working in New Zealand and was short listed and despite having other job opportunities in New Zealand, he decided to return home to India. The visa applicant in support provided a large volume of bank statements which showed monthly pay deposits and three taxation returns for the years 2018-2021. The visa applicant stated that he also earned some income from his father’s farm and referred to his taxation returns. The Tribunal accepts and places significant weight on the visa applicant’s employment as a Network Technician as an economic incentive to return to India. The Tribunal also accepts the visa applicant’s evidence that he had other job opportunities in New Zealand which he abandoned to return to his life and family in India. The Tribunal further notes that the visa applicant was on a New Zealand Working visa at the time of applying for his current job in India. The Tribunal places some weight on the visa applicant’s work on his father’s farm. The visa applicant presented as a credible and highly reliable witness.

24. The visa applicant is single, has never been married and does not have any children. The visa applicant resides in Haryana India, with his parents in their home, along with his elderly grandparents aged in their nineties. He stated that his father owns and operates a wheat and sugarcane farm which he assists with and in the future plans on taking over when his father retires. The visa applicant stressed that he has a ‘very good life’ in India, a good circle of friends and is able to save his income due to living with his parents. He stated that he had an incentive to return, as his parents and grandparents depend on him for care and support. He referred to his grandfather and father having health issues and requiring medical treatment and being the only person in his household who can drive a motor vehicle, as his grandparents and mother do not have drivers licences and his father has a vision impairment. The Tribunal accepts the visa applicants evidence and places some weight on the family network in India and their reliance on the visa applicant for care and support.

25. The visa applicant does not own any property, with the house and farm he works on belonging to his parents. The visa applicant gave evidence that he owns a motor vehicle and has savings in the sum of $11,918.00AUD. The Tribunal places limited weight on the visa applicant’s motor vehicle as it is easily transferrable or disposable. Similarly, the Tribunal places limited weight on the visa applicant’s personal savings as an incentive to return to India, as the money could be easily transferred or withdrawn or accessed remotely from Australia.

26. The visa applicant emphasised that he has been fully compliant with his three previous New Zealand visas and conditions and if permitted to visit he would return to India. The review applicant gave consistent evidence stating that the visa applicant 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, her sister-in-law and her mother-in-law who all 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, sister-in-law and mother-in-law. These records corroborate the review applicant’s evidence which show that the review applicant’s mother has travelled to Australia on three occasions, her sister-in-law has travelled on two occasions and her mother-in-law has travelled on one occasion and complied with the conditions of their visas. The Tribunal accepts the review applicant evidence and places significant 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 $10,000 to $15,000 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 stated that he has an ongoing job which has not been affected by the economic downturn and stated that he was fully vaccinated and that COVID-19 had not affected the community he lives in. The same country information was put to the review applicant who denied that these issues affected her brother. The Tribunal accepts their 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 including recently in March 2020 to see the visa applicant since becoming an Australian permanent and has no security concerns. The Tribunal notes that the review applicant obtained permanent residency through a Partner Visa Subclass 100 visa rather than a protection visa.

32. 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. Although the visa applicant has not previously travelled to Australia, he has travelled to New Zealand and complied substantially with the conditions of three New Zealand visas, including two Student visas and one working visa which the Tribunal places significant weight on.

33. The visa applicant has an incentive to return to India due to his employment as a Network Technician, which he has had for approximately four years and is ongoing into the future. This job provides security and a consistent income which the Tribunal places significant weight on this as an economic incentive to return. The Tribunal accepts that in the future the visa applicant also intends to take over his father’s farm when his father retires. Limited weight is placed on the visa applicant’s personal savings and ownership of a motor vehicle given they can be easily withdrawn, transferred or sold.

1. There is also a family network who reside in India including the visa applicant’s parents and grandparents who rely on him for care and support. The Tribunal accepts that the visa applicant enjoys a comfortable life in India, is able to save his income and has a close circle of friends which he would lose he were to relocate to Australia.

2. 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 a large number of the review applicant’s family have travelled to Australia on tourist visas and have substantially complied with the conditions of these visas which the Tribunal places considerable 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. 

3. 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

4. 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.

   Naomi Schmitz
   Member