Kaur (Migration)

[2021] AATA 5412

Kaur (Migration) [2021] AATA 5412 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sandeep KAUR

VISA APPLICANT:  Mr Lakhwinder SINGH

CASE NUMBER:  1927888

HOME AFFAIRS REFERENCE(S):          BCC2019/4273206

MEMBER:Nathan Goetz

DATE:15 December 2021

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 15 December 2021 at 3:57pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) –– tourist stream – visiting family – the visa applicant genuinely intends to stay temporarily in Australia – no adverse family migration history – strong incentives to depart Australia – family and work commitment in home country –decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 363

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 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 review applicant was represented in the review application by registered migration agent 1575891 Mr Baljit Sandhu.

   BACKGROUND

3. The visa applicant identifies as a 34-year-old male citizen of India.

4. On 27 August 2019 he applied for a visitor visa. 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. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

5. On 13 September 2019 the delegate refused to grant the visitor visa on the basis that the visa applicant did not satisfy cl.600.211 of the Regulations.

6. The review applicant identifies as 36-year-old female citizen of India who holds an Australian visa that grants her permanent residency.

7. On 3 October 2019 the review applicant applied to the Tribunal for review of the decision to refuse to grant the visitor visa.

8. On 13 September 2021 the Tribunal wrote to the review applicant for two reasons.

9. The first reason was to invite the review applicant under s.360(1) of the Act to appear at a Tribunal hearing on 14 October 2021. The Tribunal was required to invite the review applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review because the Tribunal had considered the information it had and was unable to make a favourable decision. Given the COVID-19 pandemic, the present health orders, and the fact that the Member was located in New South Wales and the review applicant was located in Queensland, the Tribunal was satisfied that a telephone hearing was appropriate.

10. The second reason was to request information from the review applicant under s.359(2) of the Act. The request for information and response is detailed later in this decision record.

11. On 14 October 2021 the review applicant appeared at the Tribunal hearing by telephone. The visa applicant also attended the Tribunal hearing by telephone from India. The migration agent attended the Tribunal hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Punjabi languages.

    CRITERIA FOR THE VISA

12. 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.

13. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·     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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Visa application form and attached documents

14. The visa application form was declared on 27 August 2019. The visa applicant indicated he was presently located in India. He applied for the visa for ‘tourism, religious event, family visit.’ He detailed a niece’s birthday on 7 October 2019 and a house settlement date of 17 October 2019 as significant dates for which he desired to be in Australia. He seeks to be in Australia for a period of up to three months and nominated 22 September 2019 to 26 October 2019.

15. He indicated he was married. He provided details of his ‘non-accompanying family members’ as:

    ·     Spouse/de facto partner named Jasvir Kaur

    ·     Child named Gursahib Singh, who was born in 2012

    ·     Father Harjit Singh

    ·     Mother Darshana Devi

16. The visa applicant detailed that he had a contact in Australia being his sister, who is the review applicant. He also identified a brother-in-law Boota Singh Sansoya and nieces Gurnaaz Kaur Sansoya and Dilreet Kaur Sansoya. Funds for his stay in Australia will be met by himself, his sister and brother-in-law.

17. The visa applicant declared that he had not previously travelled to Australia, had not previously applied to travel to Australia, and that he was self-employed as an agricultural and diary farmer in VPO Nangal, Moga, Punjab state, India, which is also where he lives.

18. Related to the visa applicant, the following documents were submitted:

    ·     The Government of India Unique Identification Authority of India identity card for the visa applicant, his wife, and child

    ·     A letter dated 17 August 2019 from a milk collection agency in India detailing that the visa applicant sells milk to that business and has been doing so for the last five years at the date of writing

    ·     An account statement/ledger from Naib Singh Lal Singh, Commission Agent, Old Grain Market for the account of the visa applicant showing various credits and debits

    ·     A sale voucher for what concerning the visa applicant

    ·     The biometric page of Indian passports for the visa applicant, his spouse and his child, as well as a photograph of the visa applicant, as well as Indian passports of the visa and review applicant’s mother and father

    ·     A statement from Chahat Garg & Associates, chartered accountants in India, advising of the value of the visa applicant’s immovable and moveable property

    ·     A health certificate concerning an examination of three animals owned by the visa applicant

    ·     A letter confirming that the visa applicant’s son is enrolled in school in India

    ·     A Punjab State Electricity Board letter confirming that the review applicant’s wife is a customer.

19. Related to the review applicant, the following documents were submitted:

    ·     The review applicant’s statement of balance for Commonwealth Bank account

    ·     The review applicant’s husband’s statement of balance for Commonwealth Bank account

    ·     A birth certificate for Gurnaaz Kaur Sansoya

    ·     A contract of sale residential property to the review applicant and her husband, and a copy of their solicitor’s letter confirming instructions to act in that matter

    ·     Two pay advices from Brisbane City Council for the review applicant’s husband

    ·     A payslip rom Oak Early Children’s Services for the review applicant

    ·     The biometric page of the Indian passport of the visa applicant, and the biometric page of the Australian passport of the visa applicant’s husband

    ·     A tenancy agreement for the review applicant and her husband

    ·     The visa grant notice for the review applicant’s partner visa

    ·     An ANZ account statement for the review applicant’s husband

20. There was also a letter from the review applicant and her husband confirming where they live in Queensland and their current migration status in Australia, employment and the reason for the visa applicant’s travel to Australia, namely a birthday and a celebration of the purchase of their first home. They had family and friends attending from across the globe and wanted to invite the visa applicant. They confirmed they can accommodate him for his whole stay in Australia and meet his expenses. They were aware of migration obligations and submitted the visa applicant would return to India at the end of his visit.

21. There was a submission from the migration agent which repeated the contents of the review applicant’s letter. The submission then went on to submit that the visa applicant had a genuine reason for visiting Australia, noting a birthday celebration and celebration of purchasing a first home and appropriately referred to the documentary evidence submitted to support this.

22. The submission noted the visa applicant’s family ties in India, namely a child, wife, and parents. It was claimed that the family were strong incentives to return to India.

23. Noting the visa applicant’s economic ties to India through employment, and appropriately directing the reader to the evidence about that. The agent also helpfully explained the relevance of some of the documentation submitted, namely the ‘J form’ which is a government approved instrument which is legally required by the government as a proof of agricultural income in India. The submission noted that as the agricultural pricing is set by the government under the minimum pricing scheme the government requires the commission agents to issue the J Forms. The submission went onto claim that the visa applicant is an Agricultural and Dairy Farmer and being a farmer is a gainful employment which is ongoing. As with every other farmer, Mr Singh receives seasonal income from his Agricultural land and regular income from Dairy Farming.

24. All of this, it was claimed, shows that the family has genuine intentions concerning the visit to Australia. The visa applicant has strong incentives to return back to India being a successful farmer and family man. The purpose to apply for this visa is to reunite with the family in Australia and celebrate the auspicious occasions together. The sponsor is very well aware of the obligations and responsibilities in sponsoring visitors to Australia and assure the delegate that the visa applicant will comply with the conditions imposed on the visitor visa.

    Review application and submitted documents

25. As noted previously, the Tribunal wrote to the review applicant to request information. The information requested was:

    ·     Australian migration history of the review applicant

    ·     Full name and date of birth, dates of arrival of any other of the review applicant’s close relatives who have come to or visited Australia within the past 10 years (including parents, brother, sister, child, uncle, aunt, cousin, niece or nephew)

    ·     Full name and date of birth, dates of arrival / visit of any other close relatives the review applicant has sponsored or invited to visit Australia within the past 10 years

    ·     Updated information about the visa applicant’s employment and financial situation in their home country

    ·     Any other information relevant to the visa applicant’s activities or commitments or relationships in their home country that would encourage them to return at the end of a visit

    ·     Any information relating to any previous visa held by, or visa application made by, the visa applicant for Australia or any other country

    ·     Any information concerning any other travel by the visa applicant outside their present country of residence.

26. In response to this request, the review applicant resubmitted the visa applicant’s Indian identity card, his son’s identity card, his wife’s identity card, and Government of India identity card for a child named Gurdit Singh who was born in 2020, and resubmitted Australian passport biometric page for the review applicant’s husband, and a resubmitted Indian passport biometric page for the review applicant.

27. The review applicant also provided the following new documents:

    ·     A visa grant notice for a skilled work regional (provisional) visa for Jaswinder Singh, as well as the biometric page of his Indian passport

    ·     A visa grant notice for a skilled work regional (provisional) visa for Lovejeet Kaur, as well as the biometric page of her Indian passport

    ·     A computation of total income document for the visa applicant for the 2021/2022 financial year in India

    ·     Indian individual tax return acknowledgement for the visa applicant for the 2021/2022 financial year

    ·     An 18-page document with an English translation relating to cultivation in India.

    ·     A plan of a residential building and valuation report for property owned by the visa applicant’s wife

    ·     An Indian certificate of COVID-19 vaccination for the visa applicant

    ·     A written statement from the visa applicant’s wife stating that she will fund her husband’s travel to Australia, noting that she owns moveable and immovable property in India, and promising that he will not overstay his visa, and will leave Australia if directed to do so by the government

    Discussion at Tribunal hearing

28. The review applicant completed a ‘Response to hearing invitation form’ and requested that the Tribunal take oral evidence from her ‘spouse’ who will be supporting the visa applicant, and oral evidence from Jaswinder Singh who was identified as the review applicant’s brother. The Tribunal referred the migration agent to the relevant practice directions which required that a written statement be provided and queried why this had not been done. The migration agent said that he had submitted documents but not statements. The Tribunal indicated that it would not be taking oral evidence in the absence of written statements.

29. The request for the Tribunal to take oral evidence from Jaswinder Singh was the first time there was a suggestion that the visa applicant and review applicant had any other siblings. In the visa application form, so such disclosure was made. The Tribunal hearing was stood down in order for details about that sibling, and any other sibling to be provided. The review applicant subsequently provided information that about the other siblings of the family that had not originally been disclosed in the visa application form and detailed their migration status as follows:

    ·     Sister – Mandeep Kaur – 13/05/1982 – UK Permanent Resident

    ·     Jiwan Jyoti Dhari – 21/03/1984 – UK Citizen

    ·     Jaswinder Singh – 13/08/1989 – Australian Skilled Visa Subclass 491

30. The review applicant told the Tribunal that she applied for the visitor visa on behalf of the visa applicant. When asked why she did not disclose her three other siblings as ‘non-accompanying members of the family unit’ in the visa application form, she said that she did not understand them to be such people. The Tribunal was initially concerned that the failure to disclose these siblings may have been because the review applicant and visa applicant had a flexible approach to the truth and wanted to hide the adverse migration history of their relatives. From this, the Tribunal reasoned that they applicants may have done this because the visa applicant would similarly develop an adverse migration history once in Australia.

31. However, the Tribunal accepts that there is no information to suggest that that the review applicant and visa applicant’s family members have an adverse migration history which may suggest that the visa applicant does not genuinely intend to stay temporarily in Australia.

32. The records demonstrate that the review applicant arrived in Australia on 18 August 2014 holding a provisional partner visa and she was granted a migration partner visa on 22 August 2016.

33. The records demonstrate that the review applicant’s husband Mr Boota Singh Sansoya arrived in Australia on 13 September 2007 holding a higher education sector visa, before being granted a temporary graduate visa on 15 March 2010 and finally a skilled independent visa on 13 November 2013 which lead to the review applicant’s husband becoming an Australian citizen on 18 May 2015.

34. The records demonstrate that the visa and review applicant’s father Mr Harjit Singh arrived in Australia on 27 September 2015 on a visitor visa and departed Australia on 12 November 2015, and arrived in Australia on 18 November 2018 on a visitor visa and departed Australia on 19 May 2019.

35. The records demonstrate that the visa and review applicant’s mother Ms Darshana Devi arrived in Australia on 27 September 2015 on a visitor visa and departed Australia on 12 January 2016, and arrived on 18 November 2018 holding a visitor visa and departed Australia on 19 May 2019.

36. The records demonstrate that Mr Jaswinder Singh arrived in Australia on 8 October 2014 holding a higher education sector visa and departed on 18 February 2018, arrived in Australia on 12 October 2019 holding a temporary graduate visa and remains in Australia after being granted a skilled work visa.

37. The records demonstrate that Ms Lovejeet Kaur arrived in Australia on 12 April 2017  holding a student visa and departed on 13 October 2018, before returning on 18 November 2018, and being granted a temporary graduate visa on 10 May 2019 and remaining in Australia on a skilled work visa.

38. Regarding the information requested under s.359(2) of the Act, the review applicant said that Jaswinder Singh is a brother, and Lovejeet Kaur is Jaswinder Singh’s wife. The 18-page document relating to cultivation in India related to the visa applicant’s farm in India. The review applicant confirmed that the visa applicant had not held any visa to any other country and had never travelled outside India.

39. At the Tribunal hearing, the review applicant confirmed that the visa applicant continues to be married and has two children. The marriage is supported by the visa applicant’s family and the visa applicant’s wife’s family. Both families are Sikh. He has not been harmed or threatened in India. He is currently employed and runs a farm, where the visa applicant has buffalo and cows. The visa applicant has never had any problems with the authorities in India and has not been involved in any political activity in India. He has not participated in any anti-government activity in India. The review applicant said that the visa applicant had never expressed to her any fear of harm in India due to the visa applicant’s race, religion, nationality, membership of a particular social group or political opinion. The review applicant said that if the visa applicant had any fear, she would expect that the visa applicant would have told her as they talk about everything.

40. The visa applicant told the Tribunal that he was married and still living with his wife. He confirmed he was currently farming. He had never previously been harmed or threatened in India. He has had no issues with the authorities in India and is not involved in any political activity in India. He has not participated in any activity which could be considered as anti-government activity. He told the Tribunal that his religion and the religion of his wife is Sikh and that their marriage was supported by both families. The visa applicant said that he does not fear harm in India due to his race, religion, nationality, membership of any social group or political opinion.

    FINDINGS AND REASONS

41. The issue in this case is whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be issued.

42. 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 Tourist stream may be granted: cl 600.221 and cl 600.222.

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

   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)).

2. The visa applicant has not previously travelled to Australia. Accordingly, the visa applicant has no Australian migration history to demonstrate or not demonstrate that he genuinely intends to stay temporarily in Australia for the purpose of a family visit.

   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)).

3. The visitor visa application form, the visa applicant agreed to leave Australia before the expiration of the grant of any visitor visa, declared that he would not undertake a course of study in Australia, and acknowledged that the visitor visa would not permit him to work. The Tribunal accepts that there is no evidence to suggest that the applicant would not comply with those conditions. Condition 8503 does not lend itself to an assessment about whether the visa applicant would comply with that condition, because that condition acts as a limitation on the type of visas that the applicant could apply for while onshore on the visitor visa.

   The Tribunal must also consider all other relevant matters (cl 600.211(c)).

4. The visa applicant and the review applicant gave consistent evidence about the visa applicant’s security situation in India. There is no evidence to suggest that the visa applicant is using the visitor visa to escape India and settle in Australia permanently because he has experienced harm in India and fears future harm in India.

5. The Tribunal accepts that the visa applicant is married and now has two children. They will remain in India while the visa applicant comes to Australia for the visit. The Tribunal also accepts that the visa applicant operates a business in India. The applicant’s family and employment ties will act as an incentive for him to return to India at the conclusion of his visit to Australia.

6. The Tribunal accepts that there is no evidence that the visa and review applicant’s family who have travelled to Australia and not complied with their visa conditions or travelled to Australia on visitor visas and remained here permanently in breach of any conditions attached to the visitor visa.

7. The Tribunal was initially concerned about the fact that the visa applicant did not declare his other siblings in the visitor visa application form. The failure to disclose the siblings suggested that there was some adverse migration history which may demonstrate that the visa applicant would adopt a similar adverse migration history if allowed into Australia. The Tribunal is satisfied that the failure to disclose the visa applicant’s siblings was attributable to the migration agent not properly advising about the completion of the visitor visa application form.

   CONCLUSION

8. 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

9. 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.

   Nathan Goetz
   Member