Jaswinder Singh (Migration)

[2024] AATA 1533

Jaswinder Singh (Migration) [2024] AATA 1533 (6 February 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jaswinder Singh Jaswinder Singh

VISA APPLICANT:  Mr Harvinder Singh Harvinder Singh

CASE NUMBER:  2215136

HOME AFFAIRS REFERENCE(S):          BCC2022/3469532

MEMBER:Justin Meyer

DATE OF DECISION:  6 February 2024

DATE CORRIGENDUM

SIGNED:7 June 2024

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision: 

·The Tribunal decision date on the cover page is corrected to read 6 February 2024, instead of 6 December 2024, to align with the date that the Presiding Member signed the decision

Justin Meyer
Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Jaswinder Singh

VISA APPLICANT:  Mr Harvinder Singh

CASE NUMBER:  2215136

HOME AFFAIRS REFERENCE(S):           BCC2022/3469532

MEMBER:  Justin Meyer

DATE:  6 December 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 06 February 2024 at 10:57am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – intention to comply with visa conditions – financial or other ties to home country – economic position – involvement in businesses in India – strong social and family links in India – 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 9 September 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 for the visa on 28 August 2022. 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 (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:

   I have considered your employment and financial status and I note that you have not demonstrated any strong financial or other ties to your home country. Furthermore, you have not provided evidence of commitments in your home country that could be considered as sufficient incentives to return at the end of your proposed stay in Australia.

   I have also considered the support provided by others in relation to your application.

   While letters of support and guarantees offered by friends, business associates, or relatives may assist a decision maker when assessing the merits of a case, they are not in themselves sufficient evidence of a genuine visit. The onus is on each applicant to provide evidence of their own individual circumstances and demonstrate incentives to depart at the end of their proposed travel to Australia.

   In light of the above considerations, I am not satisfied that you genuinely intend to stay temporarily in Australia for the purpose you have stated, and therefore find that you do not satisfy Subclause 600.211 of the Migration Regulations 1994.

5. The review applicant appeared before the Tribunal on 12 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mr Harvinder Singh and Kulwinder Singh. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

1. 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.

2. 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)).

3. There is no evidence of non-compliance with conditions of previously held visa.

4. 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.

5. There is no evidence to the Tribunal that the visa applicant will work in Australia, engage in study or training in Australia, seek a substantive visa, or remain in Australia after the end of the permitted stay.

6. The Tribunal had a significant discussion with the parties about the prospect of the visa applicant returning India.

7. The visa applicant has considerable responsibilities running his shop in India, he told the Tribunal. His brother in Australia the review applicant (sponsor) invited him to come and stay with him. His brother is married with two children and works as a carpenter. His brother’s wife works as well. The family has a large home.

8. The brothers’ mother passed away, but their father is alive.

9. His brother in Australia is earning AUD10,000 to AUD 20,000 per month as a builder and his brother’s wife earns AUD5,000 to AUD10,00 per month.

10. His father owns his own home. The visa applicant lives at home with his father. The visa applicant has his own business and has employees. The review applicant (sponsor) invited him to stay with him in Australia, and to see his children. Although the visa applicant is busy the review applicant (sponsor) insisted.

11. The review applicant (sponsor) had been in India last year. He was wanting to have his brother stay with his him this time for 10-15 Days. The visa applicant’s wife will look after the shop. His father would also help if urgent.

1. Their aged father had a blood pressure issues and heart conditions and the visa applicant is keen to be with him in India as soon as he can.

2. The Tribunal has examined bank statements of the review applicant (sponsor) which show healthy balances. He made a statutory declaration stating that he would vouch for his brother and would pay a bond or surety guaranteeing his return to India.

3. An Indian tax return of December 2023 shows total income some INR30,000 for the visa applicant’s business.

4. A balance sheet for this business of 31 March 2023 shows net balances of around INR72,000.

5. There are photographs of the visa applicant serving in his store, with very well stocked shelves with food items.

6. The visa applicant’s economic position in appears to be good, giving him little apparent to remain in Australia. There does not appear to be a motivation to remain in Australia for health reasons. Socially and family-wise there are strong links in India. The visa applicant’s apparent involvement in businesses in India presents him as a person involved in the day-to day concerns of his business. There is a large volume of documents supporting the applicants’ claims. The review applicant (sponsor) plausibly described his desire to see his brother, which to the Tribunal’s mind tallies with typical family interactions.

7. I accept that the intention of the trip to Australia is to visit family members.

8. There is no evidence of any visa non-compliance from the visa applicant or indeed anyone in the family. There is no evidence of a desire for any other visa, work or study in Australia or a lack of interest in being present for family in India.

9. There is no substantial evidence before me to support a contention that the visa applicant will not genuinely intend to stay temporarily in Australia.

10. The Tribunal has also considered all other relevant matters (cl 600.211(c)). While incomes are higher on average in Australia, it is not apparent that this is a motivator for this visa applicant.

11. 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

1. 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.

   Justin Meyer Member