Kaur (Migration)

[2024] AATA 4049

Kaur (Migration) [2024] AATA 4049 (11 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kiranjeet Kaur

VISA APPLICANT:  Ms Gurjot Kaur

REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)

CASE NUMBER:  2311820

HOME AFFAIRS REFERENCE(S):          BCC2023/4160800

MEMBER:Anne Grant

DATE:11 October 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 11 October 2024 at 2:58pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit Australian family member – personal and financial circumstances – incomplete studies and her part time work – no negative visa breach history – visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 25 July 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 21 July 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 they were not satisfied that the visa applicant genuinely intended to stay temporarily in Australia.  

5. The review and visa applicants appeared (separately) by video before the Tribunal on 11 October 2024 using the Microsoft Teams Application to give evidence and present arguments.  The visa and review applicants gave their evidence in English.

6. The review applicant was represented in relation to the review, and the representative participated by video.

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 her sister, brother-in-law and nephews. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

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. The visa applicant has previously held a visitor visa and visited Australia from 28 November 2022 to 22 February 2023.  The information on the department’s file and her movement record suggests that she complied with the conditions of that visa.  At that time, her mother was also in Australia and complied with the conditions of her visa. 

12. I have had regard and give significant weight to the visa applicant’s previous compliance with the conditions of an Australian visa as supporting her claimed intention to visit temporarily.   I consider that the delegate appears not to have had regard to this required aspect in the decision under review.

13. 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.

14. The visa applicant gave her evidence clearly and without hesitation.  She gave evidence that she and her parents want to visit the sponsor and her family who are building their own home and intend to celebrate a housewarming over the Christmas holidays this year.  Last time (2022) she was in Australia for New Year’s Eve and really enjoyed the parties with the sponsor and her friends and is keen to be visit again.  She would be on holidays from her studies and could take some leave from her part time work and intends to stay for around 15 – 20 days.  Her parents already have visas and will also come to Australia to celebrate the housewarming and see the sponsor and their grandchildren.

15. The sponsor said that she has no desire or intention to study or work in Australia.  She would be on holidays.  She also stated that she has no desire or intention to migrate to or remain in Australia or apply for any other visa in Australia.  She gave evidence that she has a good life in India, is the only child living there with her parents, and that they support her in everything she does. 

16. I accept that the visa applicant’s evidence and that she intends to comply with the conditions of the visa if granted, including not remaining in Australia after the end of a permitted stay.

17. The Tribunal has also considered all other relevant matters (cl 600.211(c)).  The visa applicant advised that she completed a Diploma of Computer Applications last year and is now enrolled in a Bachelor of Arts, first year.  She doesn’t have a particular career in mind yet, but wants to increase her options by completing her degree.  The visa applicant also gave evidence that she works part time at a Private Bank and is paid on a commission basis for insurance policies she sells.  She has savings of around 5 Lakhs (around AUD$8,000) and her parents have significant savings and assets.  She lives with her family and they pay her day to day expenses.  The family owns four shops at the front of their home and they earn rental from those shops.  The visa applicant noted that her parents are both in good health, however her mother has some mobility (knee) issues and so the visa applicant helps with a lot of the household chores.  She therefore provides some support to them every day.

18. The parties gave evidence that their father is retired and the family is very comfortable financially, with significant savings and properties.  The sponsor has provided extensive evidence to both the department and the tribunal, including bank and tax statements for the applicant, her parents and the sponsor which establish and supports her evidence that the family and the applicant are in a fortunate and very comfortable financial position in India.  I consider that there are greater incentives for the visa applicant to return to India at the end of a permitted stay than there are for her to remain in Australia where she would be without work and be unable to complete her studies, or to support her parents. 

19. Having considered the visa applicant’s personal and financial circumstances, her incomplete studies and her part time work, the purpose and period of her stay, her previous travel history and that of her family, I am satisfied and accept that the visa applicant genuinely intends to stay temporarily in Australia or the purposes of visiting her sister. 

20. I find 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.

    Anne Grant
    Member