Kaur (Migration)

[2023] AATA 1429

Kaur (Migration) [2023] AATA 1429 (4 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kuldeep Kaur

VISA APPLICANT:  Mr  Jaswinder Singh

CASE NUMBER:  2211731

HOME AFFAIRS REFERENCE(S):          BCC2022/2303368

MEMBER:Stephen Conwell

DATE:4 May 2023

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 04 May 2023 at 12:08pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) –Tourist stream– family members resident in India– positive migration 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 5 August 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 21 June 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 (the applicant) did not meet cl.600.211 because the delegate was not satisfied he genuinely intends to stay temporarily in Australia. 

5. The review applicant (sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. Having regard to the decision record, the information provided to the Department and the information, submissions and documents provided to the Tribunal, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.

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 applicant seeks the visa for the purposes of visiting his sister (the sponsor and an Australian citizen). This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221.

   Cl.600.211(a)

10. In considering whether an 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)), however because the applicant has not previously travelled to Australia, this is not relevant.

11. The Tribunal must also consider whether the 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.

12. The Tribunal has considered the personal circumstances of the applicant who was born in 1992 and is currently30 years of age.

13. The Tribunal has regard to the sponsor’s emailed statement of 7 April (undated) and supporting documents provided in response to a request for further information.  In it the sponsor states:

    ·the applicant is the sponsor’s  brother. The sponsor and her husband are Australian citizens;

    ·the applicant has farming and land interests in his home country of India. He has previously travelled overseas – to United Arab Emirates (UAE) and there is no evidence of his non-compliance with any visa conditions;

    ·the parties’ father, Mr Jagtar Singh has visited Australia on two previous occasions and returned before his visa expiry. There is no evidence of his non-compliance with any visa conditions;

    ·the sponsor has agreed to provide all financial and material support, including accommodation to the applicant should the visa be granted.

14. The Tribunal notes that the applicant has previously travelled overseas to the UAE in 2019. However as that visit was not to a country which might offer a similar incentive for the applicant to stay beyond the expiry of his visa, the Tribunal gives limited positive weight to this previous travel. It is also noted that the applicant was previously refused a Visitor visa to both Canada and Australia in 2018.  This information is disclosed in the visa application and the Tribunal places no adverse weight on this fact.

15. The Tribunal notes that the applicant has farming and agricultural interests in India. He is also married. His wife has her own retail boutique in India. Both he and his wife were refused Visitor visas, however his wife has no review rights in respect of her application. Consequently she will remain in India, should the applicant be granted a visa. The parties’ parents also continue to live in India.

16. The Tribunal is satisfied on the basis of these findings that the applicant has a wife, his parents and other close family and community ties in India. He also has farming interests and is financially comfortable; the Tribunal is satisfied that these are strong incentives which would encourage him to return at the end of a visit.

17. Additionally, the Tribunal takes into consideration that the sponsor is prepared to pay a security and is aware of the consequences of non-compliance for her (forfeiture of security and ban on future sponsorships).  The Tribunal finds these factors are further inducements to ensure that the applicant complies with all visa conditions should he be granted a visa.

18. Taking all these matters into account cumulatively, the Tribunal is satisfied that the applicant intends to comply with all visa conditions which would accompany the visa. The Tribunal is also satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    Cl.600.211(b)

19. Based on the evidence, the Tribunal is satisfied that the sponsor is able to support the applicant financially and with all other needs during the visit. The Tribunal notes that the applicant has provided evidence of farming and agricultural interests. The Tribunal is satisfied that he has the financial means to self-fund the proposed visit,  further that the sponsor and her husband have the financial means to also support the applicant during the proposed visit.

20. The  Tribunal is satisfied that the applicant does not intend to work, study or train while in Australia.

21. The Tribunal is satisfied the applicant has significant farming business interests and family ties in India (particularly his wife and parents) which act as incentive for him to return before the expiration of the visa, should it be granted.

22. The Tribunal accepts that the applicant genuinely intends to comply with the terms of the visa and to depart Australia before it expires.

    Cl.600.211(c)

23. The Tribunal has also considered all other relevant matters (cl.600.211(c)) and finds there is no evidence of other relevant issues in the case. 

24. For the above reasons the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa may be granted and finds that the requirements of cl 600.211 are met.

    DECISION

25. 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.

    Stephen Conwell
    Member