Kaur (Migration)

[2019] AATA 1901

Kaur (Migration) [2019] AATA 1901 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Pushpinder Kaur

VISA APPLICANT:  Mr Kashmir Singh

CASE NUMBER:  1732908

DIBP REFERENCE(S):  BCC2017/4394462

MEMBER:Ian Garnham

DATE AND TIME OF

ORAL DECISION AND REASONS:          14 March 2019 at 11:57 am (VIC time)

DATE OF WRITTEN RECORD:                4 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the 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 April 2019 at 4:25pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuinely intends to stay in Australia temporarily – visa to visit niece – significant incentives to return to home country – young family – assets – limited English skills – reliable witness – consistent and cogent evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, conditions 8101, 8201, 8503, 8531

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 November 2017 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 14 March 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

   ORAL DECISION OF MEMBER GARNHAM 

3. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 November 2017, to refuse to grant the visa applicant a Visitor (Class FA) visa, under section 65 of the Migration Act.

4. The visa applicant, Mr Kashmir Singh, applied for the visa on 21 November 2017.  At the time when the visa application was lodged, class FA contained one subclass; subclass 600 visitor visa, which has four streams.  In this case, the visa applicant applied for the visa, seeking to satisfy the primary criteria in the sponsored family stream. 

5. The criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations. Relevantly to this case, they include clause 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 to be granted.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet clause 600.211, because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted.

7. The review applicant {who is the niece of the visa applicant] appeared before the tribunal on 14 March 2019, to give evidence and present arguments.  The tribunal also received oral evidence from the review applicant’s husband, Mr Sukhdeep Singh.  The tribunal did not consider it necessary to receive oral evidence from the visa applicant himself.  The review applicant was not represented in relation to the review. 

   Claims and Evidence

8. The issue in this case is whether clause 600.211 is met.  This 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 to be granted.

9. 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.

10. In the present case, the visa applicant claims to seek the visa for the purpose of visiting his niece and her family, who reside in Warrnambool, Victoria.  The tribunal is satisfied this is a purpose for which a visa in the sponsored family stream may be granted. 

11. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the tribunal must consider whether they have complied substantially with the conditions of any previous visas held or subsequent bridging visas. 

    cl.600.211(a):

12. In this case, the visa applicant has never previously travelled to Australia.  Therefore, there is no evidence before the tribunal of noncompliance with Australian visa conditions or otherwise.

13. The tribunal has been advised however by the review applicant, that the visa applicant travelled with his family to Malaysia and Singapore on a family holiday in 2018.  There is evidence [that has] been provided to the tribunal to demonstrate this at folios 33 to 36 and folio 39, including copies of the visa applicant’s passport and his family’s entries and exits from Malaysia and Singapore.  The tribunal accepts that there is no evidence to the contrary that this travel was conducted in compliance with the conditions and requirements of those countries.

    cl.600.211(b):

14. In this consideration, the tribunal must determine whether the visa applicant is likely to comply with the conditions to which the visa would be subject.  In this case, the visa would be subject to the following conditions; 8101, that he must not work in Australia; 8201, that he must not engage in study or training in Australia for more than three months; 8503, that he is not entitled to a substantive visa, other than a protection visa, while remaining in Australia; and 8531, that he must not remain in Australia after the end of his permitted stay.

15. With respect to the first condition, the visa applicant’s work, there is ample evidence in the tribunal file to demonstrate that the visa applicant is involved in agricultural pursuits with numerous parcels of land, conducted with his family, through the ownership previously of his father and his two brothers.  The tribunal is satisfied that on this basis, that this is how the visa applicant creates a livelihood for himself and his family and accepts that on this basis, that the visa applicant would be unlikely to seek work whilst in Australia.

16. Similarly, the visa applicant is now 43 years of age and is settled with a wife and two young children in India.  The tribunal considers it unlikely, as he has limited English skills apparently and that it is unlikely that he will seek to engage in study or training in Australia for more than three months, should the visa be granted.

17. With respect to the two following conditions, 8503, that he is not entitled to another substantive visa and 8531, that he must not remain in Australia, I believe the likelihood of him complying with these conditions are associated with his incentives to return to India, as opposed to incentives to remain in Australia and will be discussed further, when I consider the final subclause; concerning all other relevant matters.

    cl.600.211(c):

18. Before doing so, the tribunal notes it has had the benefit of speaking with the review applicant and her husband and found them to be reliable witnesses who have given consistent and cogent evidence, along with the documentary evidence that has been provided to the tribunal.  The tribunal is confident that without speaking to the visa applicant, of the visa applicant’s intention to make a temporary visit to Australia for the [sole] purpose of visiting primarily, his niece and her family. 

19. The niece and review applicant advised the tribunal that she was particularly close to this uncle and whilst living in India throughout her childhood, on school holidays, would usually spend the whole of her school holiday period living with her uncle and his family and grew up through childhood with him as somewhat of a mentor, [he] being 11 years older [than her].

20. The review applicant came to Australia in 2009 and she has maintained contact with this uncle and made various trips back to India in 2011, 2012, 2014 and 2018 and also, most recently in January 2019 and has advised the tribunal, and the tribunal accepts, that on those visits, has spent [significant] time with her uncle and maintained their close connection.

21. In respect to the visa applicant’s family ties, I note he is married and has been for some time and has two children, an 8-year-old and a 2-year-old.  That is well documented in the Departmental file.  The tribunal also considered that he has had a previous tourist visa application made in late 2015, seeking to attend the review applicant’s first child’s fifth birthday and that application was refused.  The tribunal has extended no derogatory considerations because of that refusal and believes that the further application made now, is a demonstration of an ongoing relationship between these two people, simply to understand where the other party lives and spend time with the review applicant and her family.

22. With respect to the visa applicant’s family, I have noted that he has a wife and two young children.  He also resides in a large property, with his two brothers, who he also works with, who also have wives and two children, and his parents live in that house as well.  I think this is an extensive domicile situation with the family, and that [in these circumstances] the visa applicant would be highly unlikely not to return to such a situation.

23. With respect to the land holding, the assets and the property where they live, that is all well documented on the Departmental file.  Most recently, the visa applicant has provided the tribunal with a personal bank balance of approximately $A6000 at the end of January 2019.  The review applicant and her husband are [also] committed to providing for the visa applicant whilst he is in Australia and have advised he will reside with them in Warrnambool. 

24. The review applicant’s husband has provided the tribunal with an extensive history of relatives visiting from India and indeed, the review applicant herself has previously sponsored her family members, her father and brother and mother, who are currently all in Australia.  Her father and brother on a permanent basis; her mother on a tourist basis, seeking to acquire permanent residence and also a sister, who came here in 2011. 

25. Whilst it is clear the review applicant’s family have sought to settle in Australia, it is also evidently clear that the visa applicant, her uncle, all of his family reside in India, all of his interests are there, his family is there and as significant time has passed since the day that the application was made; it was originally made hoping that the visa applicant could attend one of his nieces children’s birthdays.  The parties advised the tribunal today, that they moved in to a new house in Warrnambool in July 2018 and if the visa applicant is able to get a visa in the near future, he would seek to come for approximately a month, and they would conduct a family celebration of moving in to their new house during that period. 

26. I find all the evidence before me about the visa applicant’s intentions to be eminently plausible and for these reasons, on balance I am satisfied that the visa applicant will comply with the conditions of his visa and that he genuinely intends to stay temporarily in Australia for the purpose of visiting his niece and her family.

27. For these reasons, the tribunal is satisfied that it is a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted and I find that the requirements of clause 600.211 are met.

28. Therefore, the formal decision of the tribunal is as follows: 

    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 (Class FA) visa, that is, clause 600.211 of Schedule 2 to the Regulations.

29. That concludes my reasons for decision and decision in this matter.

    END OF ORAL DECISION    

    DECISION

30. The Tribunal remits the decision under review with the direction that the applicant meets the following criteria for a subclass 600 (Visitor) (ClassFA) visa:

    · cl.600.211 of Schedule 2 to the Regulations.

    Ian Garnham
    Member