Kaur (Migration)

[2021] AATA 4009

Kaur (Migration) [2021] AATA 4009 (30 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Harpreet Kaur

VISA APPLICANT:  Mr Daljeet Singh

CASE NUMBER:  2001285

HOME AFFAIRS REFERENCE(S):          BCC2019/5502970

MEMBER:Jennifer Cripps Watts

DATE:30 September 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 30 September 2021 at 6:02pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit sister – the visa applicant genuinely intends to stay temporarily in Australia – strong incentives to depart Australia – family and work commitment in home country –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 (the Minister) on 2 December 2019 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 (Daljeet) applied for the visa on 1 November 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 (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 Minister refused to grant the visa on the basis that Daljeet did not meet cl 600.211 because they were not satisfied that he intended a genuine temporary stay in Australia for the purpose relating to the visa grant.

5. The review applicant (Harpreet) appeared before the Tribunal on 30 September 2021 to give evidence and present arguments. Daljeet made himself available to give oral evidence, however the Tribunal informed Harpreet it was not necessary.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, Daljeet seeks the visa for the purposes of visiting his sister, who is an Australian permanent resident. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

   Compliance with any previous visa:  cl.600.211(a)

9. 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.  On the issue of whether there is any evidence of non-compliance with conditions of a previously held visa, Daljeet has not previously been in Australia or held an Australian visa.

10. Subclause 600.211(a) is not applicable.

11. Intention to comply with visa conditions and other relevant matters:  cl.600.211(a) and (b)

12. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions, specified in cl.600.612, 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

13. The applicant in this case has indicated that he intends to stay in Australia with his sister, Harpreet, at her home in Melbourne for about three weeks.  Provided Daljeet stays just for the three week period he intends, the Tribunal considers there would be limited, if any real, opportunity for him to engage in work, condition 8101, or study, condition 8201, during such a short period and therefore unlikely he would have any intention to do so.

14. Daljeet has not been to Australia before, nor is there any record of his having been refused a visa previously.  His sister, the sponsor Harpreet, moved to Australia holding a partner visa in 2011.  In 2014 Harpreet was granted permanent residency.  She and her husband have two children, aged seven and two years of age. Harpreet said twice, in 2014 when her older son was about eight months old and again when he was about three and a half, she and her husband visited India with him.  Their second child was born in November 2018.  Harpreet and Daljeet’s mother visited Australia to help with the children when they were born and on about three other occasions, for varying periods of time.

15. At the scheduled hearing, Harpeet gave oral evidence that Daljeet’s and her father died when she was four years of age.  Daljeet is nine years her senior and became a father figure to her and her younger sister.  He looked after the family.  Daljeet gave very heartfelt oral evidence about how her brother stood in the traditional role of the father, at both Harpreet and her sister’s weddings and said that she is ‘so emotionally attached to him’,  Harpreet credits her brother with providing her with the opportunities she has had in life, that is, to come to Australia, build her own home and study at university to become a nurse in aged care, a degree that she has almost completed.  The purpose of Daljeet’s visit is so that Harpreet can show him how he helped her to achieve all these things, to see where she lives, the home she and her husband have built and to spend time with her children.  Daljeet has met his older nephew, but not the younger one, who is now nearly three.

16. There is no information before the Tribunal indicating that either Daljeet’s mother, when she travelled to Australia on about five occasions since 2011, was non-compliant with her visa conditions.  Nor is there any indication or evidence before the Tribunal that the review applicant, Harpreet, has been non-compliant with any of the conditions of her partner visa.

17. The Tribunal has considered Daljeet’s ties to his home country as against any incentive he may have to remain in Australia, in breach of condition 8531.  Evidence was given that he intends to travel alone to visit his sister, Harpreet.  His wife and three school aged daughters will remain in India, where they live in the same household as the applicants’ mother.  He also has very onerous work obligations.

18. In India, Daljeet runs the family’s agricultural business, dairy and wheat and rice crops.  Harpreet, who lived there up until 10 years ago, said the business was started as far back as the applicants’ great grandfather and Daljeet is said to have looked after the business since he was very young.  Documents, including a valuation report relating to the freehold ‘agri land’ and residence, dairy certificate, 2019-2020 income tax return for the visa applicant and a bank statement were provided, confirming ownership of the business and recent sales of grain, ownership of five buffalo and a cow (J Forms).  Harpreet was asked at the hearing when the busier times of the year are and said that harvest is in around April and September, so the farm is very busy at those times and they usually need to hire extra staff.  Also, the buffalo and cow need to be milked each morning.  She said the original plan for Daljeet to visit over the Christmas and New Year period was because it would be a time when his temporary absence would be manageable.

19. The evidence that has been given and provided satisfies the Tribunal that the visa applicant lives with his wife, three children and his mother at the family’s farm which has been handed down through at least three generations.  He owns, manages and works on the farm.  It appears to be a going concern.  His mother has departed and returned on about five occasions to visit her daughter in Australia. 

20. The Tribunal considers the likelihood that the visa applicant would be non-compliant with his visa conditions, particularly in the context of any non-compliance potentially affecting both his and other close family members’ future trips to Australia, and leaving his family behind in India, to be very low.  In the circumstances of this case, the Tribunal is satisfied, for the reasons given, that the visa applicant has a significant disincentive to breach his visa conditions and/or to remain in Australia beyond the period of the visa.

21. The review applicant has provided a Commonwealth Bank statement, dated September 2021, indicating savings of over $12,000.  She has said that she is willing to offer a bond if required.  Harpreet has also provided August and September 2021 payslips.

22. Therefore visa satisfies cl.600.211(b) and (c).

23. The Tribunal has considered matters relevant to the material issue on review, that is, whether a level of satisfaction can be reached that the visa applicant, Daljeet, has a genuine intention to stay temporarily if he is granted the subclass 600 visitor visa.  

24. 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

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

    Jennifer Cripps Watts
    Member