Jarnail Singh (Migration)

[2020] AATA 119

Jarnail Singh (Migration) [2020] AATA 119 (16 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr  Jarnail Singh

VISA APPLICANT:  Mr  Satnam Singh

CASE NUMBER:  1824025

HOME AFFAIRS REFERENCE(S):          N18/02117035

MEMBER:Margie Bourke

DATE:16 January 2020

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 16 January 2020 at 11:47am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting family – no travel history – intention to comply with visa conditions – impact on sponsoring other family members – 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 Immigration on 16 August 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 9 July 2018. 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 Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (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 intends to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 16 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence the visa applicant via telephone.  The 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 his registered migration agent.

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 family. 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. There is no evidence that the visa applicant has previously travelled to Australia, or has been the holder of an Australian substantive or bridging visa. There is therefore no evidence of compliance or non-compliance with an Australian 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(2)):

    ·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.

13. The review applicant provided academic documents which record the parents of both the review applicant and the visa applicant.  I am satisfied that they are brothers.

14. The review applicant provided the tribunal with a valuation report, and I am satisfied the visa applicant owns agricultural land in Mohali, Punjab, and based on the oral evidence at the hearing I accept the visa applicant earns an income from this agricultural property. The review applicant provided the tribunal with the visa applicant’s 2019-2020 Indian income tax return acknowledgement.  Based on the written and oral evidence before me I am satisfied that the visa applicant runs a taxi business in addition to the agricultural income.

15. The review applicant and visa applicant gave evidence, and I accept that the review applicant is married with no children, has an older sister who is married, and has one younger brother (the visa applicant) who is married with two children and expecting their third child in February 2020. I accept the evidence that the visa applicant lives with and supports his mother and grandmother.  I accept the father of the review applicant and visa applicant is deceased.

16. I have considered the personal circumstances of the visa applicant, including his family circumstances, the members of his household, and his financial and business circumstances. I am satisfied that the visa applicant does not intend to work, study or train in Australia.  I accept the visa applicant intends to return to his home in Mohali, Punjab before the expiration of the visa because of his family which includes his pregnant wife, two children, and his mother and grandmother who are all dependent members of his household. I accept the visa applicant also intends to return to Mohali, Punjab to his taxi business and agricultural land.

17. The review applicant stated he had sponsored his mother to visit for three months in 2013, and twice in 2017/8.  The review applicant provided the tribunal with copies of the grants of the visas to his mother.  The review applicant stated his wife’s parents had also been sponsored to visit them in 2019. The review applicant and visa applicant stated it was important for the review applicant and their mother for her to be able to visit her older son in Australia. I accept the review applicant and the visa applicant understand that if the visa applicant does not comply with the conditions of his visa, then his brother and his wife will not be able to successfully sponsor other family members to visit them in the future, and this will have a detrimental impact on many immediate family members.

18. For all the above reasons, I am satisfied that the visa applicant intends to comply with the conditions to which the visitor visa may be subject.

19. The Tribunal has also considered all other relevant matters (cl.600.211(c)). I accept the evidence of the review applicant that he is indebted to his younger brother for remaining in India and caring for their mother and grandmother. I accept the evidence of the review applicant that he will be proud to show his brother his Australian way of life, and his brother will be happy to be able to return to Mohali, Punjab and talk of his older brother’s situation. I accept the review applicant intends to provide the costs of the visit as a gift to his younger brother, and will ensure that the visa applicant complies with the conditions of the visa.

20. 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

21. 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.

    Margie Bourke
    Member