Kaur (Migration)

[2018] AATA 1788

Kaur (Migration) [2018] AATA 1788 (3 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jittashapreet Kaur

VISA APPLICANT:  Mr Harashpreet Singh

CASE NUMBER:  1715653

DIBP REFERENCE(S):  BCC2017/1808536

MEMBER:Louise Nicholls

DATE:3 May 2018

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 03 May 2018 at 5:03pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – Speech problems – Economic support by family – Local accommodation provided – Future marriage plans – Employment in home country – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 600.211, 600.212, 600.231

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The visa applicant, Harashpreet Kaur, is a citizen of India and is 29 years of age. He is seeking a sponsored visitor visa to visit his sister, Jittashapreet Singh, who is an Australian citizen living in Sydney with her husband and children. Ms Singh is the review applicant in this matter.

2. The review applicant is seeking a review of a decision made by a delegate of the Minister for Immigration on 20 June 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

3. The visa applicant applied for the visa on 19 May 2017. He provided:

   ·Photocopy of the biodata page of the visa applicant’s Indian passport.

   ·Photocopies of the biodata pages of the visa applicant’s parents passports and documents showing the family relationship between the visa applicant and the review applicant.

   ·Hand written submissions made on behalf the visa applicant.

   ·A letter from the visa applicant’s employer, Dayal Brick Kiln dated 15 May 2017.

   ·Bank statements from the State Bank of India and State Bank of Patiala in the name of the visa applicant.

   ·Statutory declarations made by the review applicant and her husband on 16 May 2017 together with their citizenship and identity documents.

   ·A photocopy of the review applicant’s husband’s salary details.

   ·A photocopy of the review applicant’s bank balance (Westpac).

   ·A statutory declaration made by the visa applicant’s uncle dated 5 May 2017 together with identity documents and tax returns.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. The delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the stated purpose. The delegate was concerned that there was little evidence of incentives for the visa applicant to return to India at the end of his visit.

5. The application for review was made on 19 July 2017. The review applicant provided a copy of the delegate’s decision of 20 June 2017. She also provided submissions made by her representative, copies of her parents’ identity documents and Australian visa grants, the visa applicant’s employment reference, statement of accounts with the State Bank of India, evidence of the visa applicant’s land ownership and a copy of his father’s will.

6. The review applicant appeared before the Tribunal on 9 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The review applicant gave evidence in English and the interpreter was retained to assist if there was a need to telephone the visa applicant or his parents in India. As the visa applicant cannot speak the Tribunal did not take evidence from him by conference telephone.

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

10. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

11. 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.

    Background

12. The review applicant is 31 years of age and was born in a small rural village near Chandigarh in Punjab State, India. She attended high school in her local area and studied to become a beautician in India before she obtained a student visa to study hairdressing in Australia.

13. She initially obtained a regional sponsored skilled visa and worked as a hairdresser for 4 to 5 years in Branxton, a rural town in Australia. She is now living in Granville with her husband and two children. She married in 2012. Her husband has one sister who lives in Australia and his mother lives in India.

14. The applicant was previously married but that marriage broke down because her former husband had a girlfriend in the United States.

15. Her current husband works in a factory and also cleans a restaurant as a second job. The couple have a rented home with two bedrooms and have two daughters aged four years and one and a half years.

16. The visa applicant is 29 years of age and lives with his parents in the family home in Chandigarh. He did not complete school due to a serious speech problem however the applicant stated he was physically fit but could not speak; he is also illiterate. Her parents have found work for him at the local brick kiln where he is engaged in cleaning and labour work for the kiln.

17. The visa applicant’s parents own a large house in the village and the applicant provided photographs of the home and surrounding grounds. Her father was a head teacher but has now retired with a pension and her mother is a housewife. Her parents also owned a number of small parcels of land which they used for farming. They have transferred these properties to her brother and he assists in the farming work as well is earning some income from the farms. The review applicant provided copies of land title documents showing the visa applicant’s ownership of a number of parcels of land.

18. She stated her parents have been granted visit visas and she provided copies of the visa grants which expire at the end of 2018.

    Compliance with conditions of last substantive visa

19. 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)). The visa applicant has not previously travelled to Australia and there is no evidence of non-compliance with any visa conditions.

    Purpose and Duration of Visit.

20. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

21. The review applicant and her parents propose that the visa applicant will visit with his parents for a period of approximately two months and they will live with the review applicant and her husband in their rented apartment. The review applicant proposes taking her parents and the visa applicant to various places in Sydney and outside Sydney. They will also visit her uncle and cousins who live in Sydney.

    Travel and migration history

22. The visa applicant has not travelled outside India. The review applicant’s parents were granted visit visas on 22 November 2016 but have not yet travelled on those visas.

23. The review applicant has not sponsored any other relatives in the last 10 years. The review applicant’s husband’s parents previously visited Australia and complied with the conditions of their visas. The review applicant has an uncle who lives in the Kellyville area and he is an Australian citizen.

24. The Tribunal considers that there is no evidence relating to the family’s travel and migration history which suggests that the visa applicant will not comply with the conditions of any proposed visit visa granted.

    Intention to comply with conditions and other relevant matters.

25. 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.

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

27. The visa applicant is 29 years of age. He lives at home with his parents and appears to be living in comfortable circumstances in the family home. The review applicant stated that there was some talk of the visa applicant getting married later in the year but gave no further details of any firm marriage plans.

28. The evidence indicates that the visa applicant has serious speech problems and is not well educated. However the evidence indicates his parents have provided for him in terms of accommodation, transfer of income earning property and his physical and emotional support.

29. The evidence of the review applicant is that her parents would like to visit her to see her Australian home and visit with their grandchildren. They would also like to bring the visa applicant with them as he has had a difficult life and they do not want to leave him out of the travel arrangements.

30. With respect to incentives to return to India, the review applicant submits that the visa applicant has a comfortable life in India and is well supported by his parents. He could not stay in Australia because he cannot speak and would not be able to support himself or live without the support of family and his workplace in India. His employment at the brick kiln was arranged by her parents who have a good relationship with the business owner. The visa applicant’s extended family live in India and she claims there is the prospect of a marriage in the near future. She stated it would be quite impossible for the visa applicant to settle in another country given his speech issues.

31. The Tribunal accepts that the visa applicant cannot speak and does not intend to work or study whilst he is visiting Australia. He is not able to apply for another visa whilst he is in Australia and there is no evidence to suggest that he will overstay the period of any permitted visit.

32. The review applicant gave evidence that her parents and the visa applicant intend to depart Australia at the end of the proposed visit. The review applicant and her husband gave evidence that they understood that if the visa applicant and his parents complied with the conditions of any visit visas granted that this would assist in any future applications for visitor visas. They also understood that any breach of the conditions would make it difficult for other members of the family to visit.

33. In the latest report[1] prepared by the Australian Department of Foreign Affairs it is noted that other than for some “hotspots” such as Jammu Kashmir most Indians live their lives with a relatively low risk of violence and that India is a stable functioning democracy. With respect to the Sikh community “Sikhs in contemporary India have no heightened risk of official or societal discrimination beyond that experience by the broader community”.

    [1] DFAT Country Information Report India 15 July 2015

34. On the evidence before it the Tribunal considers that the applicant’s parents and the visa applicant are intending to visit Australia for the purpose of seeing the review applicant and her family and they intend to return to India at the end of the proposed visit. Whilst the delegate was concerned about the visa applicant’s economic circumstances the Tribunal is satisfied that the visa applicant’s parents are able to support the visa applicant during his visit. Further the review applicant will provide accommodation and local support during a visit by her parents and brother. Given the visa applicant’s speech problems the Tribunal accepts this submission that the incentives to return to a relatively comfortable and supported life in India will outweigh any incentives to remain in Australia after the end of the proposed visit.

    Conclusion

35. 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

36. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteriafor a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Louise Nicholls
    Senior Member