Jaspreet Kaur (Migration)

[2019] AATA 2606

Jaspreet Kaur (Migration) [2019] AATA 2606 (13 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jaspreet Kaur

VISA APPLICANT:  Mr Baljit Singh

CASE NUMBER:  1815891

HOME AFFAIRS REFERENCE(S):           BCC2018/1837034

MEMBER:Adrienne Millbank

DATE:13 May 2019

PLACE OF DECISION:  Brisbane

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 13 May 2019 at 4:14pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visiting family – intention to comply with visa conditions – awaiting outcome of Contributory Parent visa application – significant ties to home country – owner and manager of farming business – credible witnesses – 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 18 May 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 is a 51 year old Indian national who has applied for the visa in order to visit his daughter, the sponsor and review applicant, and her husband in Australia. At the time of application the visa applicant proposed a length of stay of up to three months, from 10 June 2018 to 1 September 2018. At the time of decision he proposes a stay of from one to three months, in late 2019.

3. The review applicant migrated to Australia in 2014 on a Partner visa.  She is expecting her first child in December 2019. 

4. The visa applicant applied for a Contributory Parent (Temporary) (Subclass 173) visa on 17 January 2017. At the time of decision, no decision has been made on that application.

5. The visa applicant applied for the Visitor (Class FA) visa on 26 April 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 Sponsored Family stream.

6. 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.

7. The Delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. 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, to visit family. The Delegate acknowledged that the visa applicant had provided evidence that his farm business was sufficiently profitable to offer an incentive to return to India, but was not satisfied, given the seasonal nature of the visa applicant’s work, that his employment ties offered sufficient incentive for him to depart within the validity of his visa. The Delegate further considered a visit of three months duration to be inconsistent with the personal circumstances of the visa applicant as a self-employed, divorced agriculturalist living with his son.

8. The review applicant appeared before the Tribunal on 9 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, the visa applicant’s son-in-law.

9. The review applicant was represented in relation to the review by her registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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. In the present case, the visa applicant seeks the visa for the purposes of visiting his daughter and son-in-law. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

13. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

14. The visa applicant has not previously applied for a visa to enter Australia. The Tribunal places no weight on this consideration.

15. 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.

16. The visa applicant has indicated that he does not intend, and there is no information before the Tribunal to suggest that the visa applicant intends to work or engage in study or training in Australia while on a Visitor visa.

17. At hearing the parties confirmed that the visa applicant is awaiting the outcome of an application for a Contributory Parent (Temporary) (Subclass 173) visa, lodged on 17 January 2017. The parties confirmed that the visa applicant lodged the application offshore, from India, and intends to be offshore, in India, when he is granted the visa.

18. The parties demonstrated at hearing an appreciation of Australia’s migration system and law, and the Tribunal is satisfied that the review applicant and the visa applicant understand that the visa applicant would not be entitled to a substantive visa other than a protection visa while remaining in Australia. The parties advised that both the review applicant and the visa applicant are fully aware of the purpose and conditions of a Sponsored Family Visitor visa. The Tribunal accepts, on the evidence provided, including the testimony at hearing, that the visa applicant has no intention of remaining in Australia after the end of permitted stay.

19. The Tribunal has considered all other matters relevant to the issue of the visa applicant’s genuine intention to stay temporarily in Australia for the purpose for which the visa is granted (cl.600.211(c)).

20. Evidence was provided to the Tribunal that the visa applicant is the owner and manager of farming and associated businesses: a cattle feed shop and a milk dairy shop. Evidence was also provided that the visa applicant owns the house where he lives with his son, a 24 year old student, and that the house has been valued (in May 2019) at over AUD 45,000. At hearing the parties described how the visa applicant worked for around ten years in the United Arab Emirates, as a heavy vehicle driver, before returning to India and investing in his family’s farming business. They described how the farmland is shared and worked, with rotational cropping, between the visa applicant and his brothers.

21. Evidence was provided including in the form of the statements of transactions from the visa applicant’s personal bank account from 3 September 2018 to 30 April 2019 that the visa applicant receives a steady income from the farming and associated businesses, and that on 30 April 2019 he held a balance in his personal bank account of over $10,000. At hearing the parties advised that the visa applicant would leave the farm and businesses in the hands of his brothers during a visit of from one to three months, as was usual practice within the family, and that if and when the visa applicant comes to Australia for a longer period on a Contributory Parent visa he would lease his share of the farm business to his brothers, and receive an annual share of its income.

22. The Tribunal is satisfied that the visa applicant has significant incentives, in the form of his home, son and farming business, to return to India following a visit to Australia. Regarding the length and timing of the visit, the parties advised that they are seeking a visa of up to three months in order to provide flexibility, and that the visa applicant might not want to stay in Australia for longer than one or two months. They advised that they visited the visa applicant in India in 2016 and 2018, and that they want to spend time with him and show him around their home in Australia.

23. As noted, the review applicant is pregnant. The review applicant’s husband advised that he works night shift, as a nurse, and has started to worry for his wife as she is suffering from morning sickness. The parties advised that the visa applicant has no plans for when he will visit, but that they would like him to visit during the review applicant’s pregnancy, so as to provide support for the household. The parties advised that they plan to show the visa applicant around the Queensland region during his stay, and possibly to travel to Sydney or Melbourne, depending on his wishes.

24. The Tribunal found the review applicant and her husband to be credible witnesses, and accepted their testimony regarding their and the visa applicant’s intentions.

25. Having considered the evidence and the circumstances of the parties, 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

26. 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.

    Adrienne Millbank
    Member