Holla (Migration)

[2024] AATA 2372

Holla (Migration) [2024] AATA 2372 (2 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Anusha Holla

VISA APPLICANT:  Mr  Pavankumar

REPRESENTATIVE:  Mr Ganasan Arujunan

CASE NUMBER:  2306547

HOME AFFAIRS REFERENCE(S):          BCC2023/1107472

MEMBER:Stephen Witts

DATE:2 July 2024

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 02 July 2024 at 11:10am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – demonstrated financial standing – business and family commitments in India – previous compliant family visits – desire for further family visits – decision under review remitted           

LEGISLATION

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

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 16 March 2023 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 13 February 2023. 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 applicant genuinely intends to stay in Australia temporarily.

5. The review applicant (the sponsor) appeared before the Tribunal on 18 June 2024 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant (the applicant).

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 OF CLAIMS AND EVIDENCE

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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

11. 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)).

12. The Tribunal notes that there is no evidence before it of any substantive visa breaches by the applicants.

13. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

14. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision dated 16 March 2023. In this decision it was asserted by the delegate that the applicant has not demonstrated sufficient financial standing, relevant travel history, and other attributes that would demonstrate that the applicant has an incentive to return to his home country of India.

15. The Tribunal notes that the applicant provided it with a statement dated 5 June 2024 stating that he is 40 years old and happy living in India, that he has his own hardware business which has an annual turnover of AU$30,000 and that it is a competitive and healthy business. He stated that he has an older brother and younger sister and that his brother works in Dubai and that his sister lives in Australia. He stated that his mother has passed away and that he would like to visit his sister in Australia. He stated that his brother visits India from Dubai regularly but that his sister is not able to visit because of the nature of her job in that she runs a childcare centre. He stated that the last time she visited India was in December 2023 and that was after six years of not being able to visit India.

16. He also stated that if she wanted to travel to India more frequently, she would have to close her childcare centre and that this is not good for her business. He stated that she has a six-year-old daughter and a son who is one year old, and this also creates difficulties travelling.

17. He stated his father is 75 years old and lives with him and helps look after the hardware shop and that he also has an employee who also assists and that he cannot leave his hardware business unattended for long or leave his father alone in India.

18. He further stated that there is also a family-owned coconut plantation, and which has workers working in the business and he cannot leave that business unattended. He stated that his marriage has not worked out and that he and his wife are getting divorced, that he has a five-year-old daughter who he cannot see because his wife does not let him, but that he has requested regular access.

19. He stated that all his friends and relatives are in India and that he has no one in Australia except his sister and that he would not want to jeopardise other visa applications that he or his father might make by breaching any visa that he is successful in being granted. He stated that his brother has also visited his sister in Australia. He further stated that he is not suffering any persecution in India and is happy and doing well but that he misses his sister.

20. The Tribunal notes that it has also received a submission dated 5 June 2024 from the applicant’s sister stating that her father and brother have been to Australia and did return to India and that her father came to Australia last year and spent 11 months in Australia but then returned to India and that she has sought to bring her brother to Australia on three other occasions but has been unsuccessful and that the first refusal was in 2012. She stated that it is difficult for her to travel with a young family, that she is running a day care centre which she cannot just close and that the last time she visited her brother was in December 2023 when she travelled there with her newborn son and her daughter and her husband.

21. At the hearing the Tribunal had a discussion with the applicants regarding the application.

22. The applicant stated that he has made other visitor visa applications to come to Australia, he thinks, on two other occasions since 2019. He stated that he would be a genuine temporary visitor to Australia as he has significant incentive to return to his home country including his five-year-old daughter that he is currently negotiating access with via his soon-to-be ex-wife through his divorce proceedings that are currently progressing, and that she lives 60 km from his house, and that he is very hopeful in the future that he would be able to develop an appropriate relationship with his daughter to see her regularly. He also provided evidence about his activities with his family businesses including his agricultural holdings and his hardware business. He stated that he came back into the family business in 2012 after working for some years as an IT engineer, including working in Nigeria for two years in 2010 with his company in that field. He stated that he can fund his trip to Australia. He stated that he is still living in the family home with his father and that that is owned by the family.

23. The sponsor stated that she would be very confident that her brother would be a genuine temporary visitor to Australia and that her other brother has visited Australia and abided by his visa conditions, and that her father has visited Australia on four occasions since 2012, most recently in 2022, and the family would not want to jeopardise that arrangement. She also provided some evidence about the nature of her childcare business and the responsibilities that are entailed in managing that as well as her two young children here in Australia.

24. The Tribunal has considered the evidence very carefully and is somewhat concerned regarding the applicant’s incentives to return home now he is divorced, but also notes that he does have his daughter to return home to, and to his father and the family business, and that he does not have any other family or friends in Australia other than his sister. The Tribunal finds it is more than likely that the applicant does intend a genuine temporary visit to Australia.

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

26. 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

27. 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.

    Stephen Witts
    Member