Kaur (Migration)

[2020] AATA 3869

Kaur (Migration) [2020] AATA 3869 (14 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Karamjeet Kaur

VISA APPLICANT:  Mr Darshan Singh N-A

CASE NUMBER:  1918704

HOME AFFAIRS REFERENCE(S):          BCC2019/3012299

MEMBER:Tania Flood

DATE:14 September 2020

PLACE OF DECISION:  Sydney

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 14 September 2020 at 5:10pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine intention to stay temporarily for purposes of visa – sponsored family stream – applicants married but visa applicant remained in home country – family, properties and religious welfare work in home country – applicant’s brother an Australian citizen – previous compliant travel by applicant and 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 2 July 2019 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 13 June 2019. 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 (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 visa was refused on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that he genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal by telephone on 11 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone.  The Tribunal 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.

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

   BACKGROUND

8. According to information provided in the application for a Visitor visa, the visa applicant is a fifty-six-year-old married male who resides in Punjab, India. His wife is an Australian citizen, residing in Australia. He also has one brother and a nephew in Australia. He wishes to travel to Australia for up to three months for a ‘family visit’. At the time of his application he also indicated that he wished to attend his nephew’s ‘housewarming function’ and ‘newborn baby’s function’ in July 2019.

9. The review applicant is the wife of the visa applicant.

10. In a submission to the Tribunal dated 3 September 2020, the review applicant stated that the visa applicant’s mother, sisters, and two older brothers live in India. She submitted that neither the visa applicant nor any of his family members have breached the law or their visa conditions in Australia and ‘anywhere in [the] world’.  She stated that the visa applicant is a ‘very busy person in India’ and undertakes ‘social activities for the welfare of the community’ and ‘religious preaching programmes’. It was further submitted that the visa applicant owns properties in ‘various places’ in India, valued at more than 37,615,297.00 rupees.  

11. Supporting documentation provided to the Tribunal includes:

    -    Copy of a Trust Deed – Gurudwara Tapoban Dhakki Sahib Trust

    -    Valuation certificates for various properties in India.

    -    Australian Marriage Certificate.

    -    Copies of the visa applicant’s passport pages showing international travels.

    -    Bank statements.

    -    Sales vouchers for agricultural goods sold by the visa applicant.

    Tribunal hearing

12. The review and visa applicant provided consistent oral evidence to the Tribunal which is summarised as follows:

13. The review applicant was born in India and is now an Australian citizen.  She and the visa applicant met in 2007 and were married in Australia on 4 May 2009.  They have no children.

14. The visa applicant is working as a nurse.  She lives alone in rented accommodation and only has a cousin living in Australia.

15. The visa applicant resides in India and the review applicant has been travelling annually to India to spend time with him.  They applied unsuccessfully for a Partner visa in 2013 but did not appeal the decision.

16. The review and visa applicants stated that neither of them wants to relocate.  If the visa applicant secures a Visitor visa he hopes to be able to travel to Australia more frequently.  In the meantime, they maintain regular communication via social media.

17. The visa applicant was also refused a Temporary Activity visa but they do not know why as all other members of the proposed party of persons travelling to Australia had their visas approved.

18. The visa applicant has previously travelled to Australia on a Visitor visa and complied with the conditions of the visa.  He has also undertaken extensive international travel for religious and tourism purposes and has always returned to India.

19. The visa applicant is a Sikh and is part of a collective centre providing housing and welfare assistance to around 70 persons.  He lives and works at the centre.  The centre has agricultural holdings which they use for subsistence and for income generation.

20. The visa applicant also owns his own home and has personal agricultural holdings from which he generates an income. He also maintains a home in the Sikh welfare centre where he usually resides.

21. The visa applicant’s mother, two brothers and their families live in India.  He has another brother who has lived in Australia for more than thirty years.   His mother has visited Australia and one of his brothers had a Visitor visa granted last year but did not travel. 

22. The visa applicant stated that he would only visit Australia for a maximum of one month and he is in a financial position to pay for his own travel costs and expenses.   He is not planning to work or study in Australia.

23. The visa applicant claimed to be in good health and not to have any problems, religious or otherwise in India.

24. The visa applicant will return to India after visiting Australia because his mother and brothers reside there and he is very committed to the Sikh welfare centre where he is the Chairman of the Trust.

25. The review applicant is willing and able to pay a security bond in order to facilitate the grant of the visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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.

27. 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.

28. 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)).

29. The visa applicant visited Australia on one previous occasion as the holder of a Visitor visa (UL-679), sponsored by his brother. He arrived in Australia on 28 March 2009 and departed on 7 May 2009, before his visa ceased.

30. The visa applicant applied for a Temporary Activity visa (GG-408) on 22 May 2018, sponsored by ‘The Australian Sikh Association’. The visa was refused on 11 July 2018. In her submission to the Tribunal dated 3 September 2020, the review applicant stated that the visa applicant intended to travel to Australia with his Jatha. She submitted that all other members of the religious group were granted a Temporary Activity visa but did not travel to Australia as the visa applicant could not travel with them.

31. The review applicant first arrived in Australia on 28 March 2009 as the holder of a Student visa (TU-573). She was granted two further student visas in 2011 and 2012 and a Skilled Independent visa (SI-189) on 2 November 2015. The review applicant acquired Australian citizenship on 25 January 2018.

32. The visa applicant’s brother first arrived in Australia on 27 February 1988 and acquired Australian citizenship on 26 January 1996. He has previously sponsored the visa applicant, his parents, and his brother for a Visitor visa to Australia.

33. The visa applicant’s mother first visited Australia in 2010 as the holder of a Visitor visa (UL-679). She was granted another Visitor visa (FA-600) and visited Australia again in 2014 and 2017. On each occasion, she departed before her visa ceased.

34. The visa applicant’s father visited Australia in 2010 as the holder of a visitor visa (TR-676) and departed before his visa ceased.

35. The visa applicant’s nephew arrived in Australia in 1994 and acquired Australian Citizenship on 26 January 1996. According to the review applicant’s submission dated 3 September 2020, the visa applicant’s nephew sponsored his mother-in-law for a visit to Australia in 2014.

36. 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.

37. Based on the marriage certificate which was tendered as evidence the Tribunal accepts the review and visa applicants were married in Australia in 2009.  The visa applicant is proposing a short visit to Australia to see his Australian citizen wife and brother.  He has produced bank statements and evidence of income derived from his personal agricultural holdings, which indicate he is in a position to cover the costs of his travel and daily living expenses while in Australia.  Additionally, his wife is employed and will be providing the applicant with accommodation and daily assistance for the duration of the proposed visit.   Based on all the available evidence the Tribunal is satisfied that the visa applicant will not and has no need to work in Australia if he is granted a Visitor visa.  Additionally, given his age and individual circumstances the Tribunal is also satisfied that he will not engage in study or training in Australia if he is granted the visa. 

38. In view of the above the Tribunal is satisfied that the visa applicant will comply with conditions 8101 and 8201 if he is granted a Visitor visa.

39. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

40. The review and visa applicants claim that the visa applicant is the Chairman of the Gurudwara Tapoban Dhakki Sahib Trust which was set up in 2018 to spread teachings of Sikhism and to provide housing, medical and educational facilities, food and other welfare assistance to drug and alcohol dependent people irrespective of caste or creed.  Based on their oral and documentary evidence this centre is supported by donations and income raised from the sale of agricultural produce.  In support of their claims the applicants have produced a copy of the Trust Deed, bank statements in the name of the Trust and evidence of agricultural land holdings. It is claimed that the visa applicant resides predominantly at the centre and is committed to its ongoing development.  Further, he has undertaken numerous international travels linked to his strong commitment to Sikhism.  The Tribunal is persuaded by this evidence and considers the Trust provides a strong incentive for the visa applicant to return to India after visiting Australia.

41. The Tribunal notes the visa applicant had an interest in permanently residing in Australia when he applied for the Partner visa which was refused in 2013.  It is not entirely apparent why the applicants chose not to pursue the matter on appeal but seven years later it now appears they are settled with the reality of living in separate countries for the foreseeable future.  During the hearing the review applicant stated that she has settled in Australia enjoys her work and the life she has built here.  Similarly, the review applicant indicated that he is committed to his work with the Trust.  While this separate living arrangement might appear unorthodox for a married couple there is no evidence before the Tribunal to indicate that the marriage has been dissolved and according to the applicants they maintain their relationship through regular visits by the review applicant to India and daily communication via social media.  The review applicant indicated that it is their hope that the visa applicant will be granted a Visitor visa so he can demonstrate compliance with Australian immigration law and hopefully be able to make more frequent visits to see her in between her trips to India. Taking into account their individual circumstances, their commitment to their work,  their respective ages and stages of life, the Tribunal found their evidence persuasive and has not drawn any adverse conclusions about their marriage or the intentions of the visa applicant based on previous visa applications or their living arrangements.

42. While the Tribunal acknowledges the presence of the applicant’s wife and brother in Australia might be an inducement for him to wish to remain in Australia the Tribunal considers the presence of his mother and two brothers in India and his involvement with the Trust equally strong incentives for him to return to India. 

43. In addition, the Tribunal notes and has placed much weight on the visa applicant’s travel history.  Copies of the visa applicant’s passports shows visas and entry stamps to numerous countries including Thailand, Malaysia, Singapore, Canada, Pakistan, the United States of America, the United Kingdom and several Schengen countries.  The visa applicant has had many opportunities to seek to remain outside of India through his various travels but instead he has willingly returned to India.  There is no evidence before the Tribunal to indicate that he will not do the same if he is granted a Visitor visa to Australia.

44. The Tribunal has also placed weight on the migration history of the visa applicant’s close family.  His wife followed a legitimate pathway to Australian citizenship; his father visited Australia once on a Visitor visa and his mother has visited Australia three times on a Visitor visa.  On all occasions his parents returned home to India before their visas ceased. 

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

46. Having carefully considered the available evidence the Tribunal is satisfied that the visa applicant will depart Australia after a short holiday spent visiting his wife and brother.

47. 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

48. 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.

    Tania Flood
    Member