Kaur (Migration)

[2021] AATA 4002

Kaur (Migration) [2021] AATA 4002 (29 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Manpreet Kaur

VISA APPLICANT:  Mr Gagandeep Singh

CASE NUMBER:  2000880

HOME AFFAIRS REFERENCE(S):          BCC2019/6450153

MEMBER:Jennifer Cripps Watts

DATE:29 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 29 September 2021 at 2:46pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – close family and economic ties to India –credible and truthful witness–the 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 (the Minister) on 23 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 applied for the visa on 4 December 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 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 Minister refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the Minister was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose of the visa grant.

5. The hearing was scheduled during COVID-19, when Tribunal registries were closed for on site hearings.  The review applicant appeared before the Tribunal, by MS-Teams, on 29 September 2021.  The visa applicant appeared by phone from India.  There were a couple of minor technical issues, but they were resolved.  The Tribunal is satisfied that all who attended the hearing could hear and understand each other.  No interpreter was requested and one was not needed.  Both the review and visa applicant speak clear and advanced English.

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, the visa applicant is outside Australia and seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Tourist stream may be granted; cl.600.221 is applicable and met.

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 (cl 600.211(a)).

10. 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)). Subclause 600.611(3) is applicable in this case, in which five conditions are specified that either must or may be imposed:

    must be imposed:

    ·8101 – the visa holder must not work in Australia

    ·8201 – while in Australia, the visa holder must not engage, for more than 3 months, in any studies or training

    or, may be imposed:

    ·8501 - the visa holder must maintain adequate arrangements for health insurance while in Australia

    ·8503 – after entering Australia, the visa holder will not be entitled to be granted a substantive visa, other than a protection visa, while they remain in Australia

    ·8558 – the visa holder must not stay in Australia for more than 12 months in any 18 months period

11. The Tribunal has also considered any other matters considered to be relevant (cl 600.211(c)). 

    Brief background and family information

12. The visa applicant, born in 1995, lives in India with his wife, in the family home with his mother and father.  He has two sisters in Australia, the review applicant Manpreet, who was granted a partner visa in 2015 and lives in Adelaide with her husband and their six year old daughter; they are expecting their second child in January 2022.  Manpreet gave oral evidence at the hearing that their sister Jasmeen recently completed accounting studies in Australia, lives in Melbourne and currently holds a temporary work visa.

13. Two visitor visa applications were made in late 2019, one for the visa applicant (refused) and one for his father (granted), both for the purpose of them visiting Manpreet in Adelaide, together.  However, their father did not travel to Australia as planned because he will not travel unless someone travels with him.  The visa applicant made a second application for a visitor visa, which was also refused, and is the subject of this review. 

14. At the time of this decision the purpose for the visit remains the same, however Manpreet’s personal circumstances have changed.  As is the case for most Australian citizens, she cannot travel outside Australia due to the restrictions on international travel that are in place as a result of the COVID-19 pandemic.  In addition, Manpreet works full time, has a young family to care for and is in the advanced stages of pregnancy.  She expressed her hope that both her mother and father can come to stay with her, after she has had the baby In January 2022, to provide her with some support with the two children and so the children can spend valuable time with their grandparents.    

15. Information relating to the visa applicant’s employment in the family business, Deep Engravers in Mohali, Punjab, was provided at the time of application.  At the scheduled hearing, the review applicant spoke about the family business and informed the Tribunal that her father has had the business for over 30 years and that he employs about five people, including the visa applicant.  At the scheduled hearing, the review applicant indicated she had a copy of the business registration for Deep Engravers.  A copy was held up to the video and sited by the Tribunal.  The visa applicant works there with his father and his presence is essential to the running of the business because of his higher level of technical expertise with laser engraving.  The Tribunal is satisfied as to these matters. 

16. The visa applicant was asked how long he intended to stay in Australia visiting his sister if the visa was granted and said that he would only be able to stay for about a week and a half because he cannot leave the business for long.  As mentioned earlier, Manpreet is hoping that both her parents will be able to come and see their grandchildren and help with their care in 2022.  This also presents a logistical problem though, because neither her mother nor father will take an international long haul flight without someone accompanying them.  The Tribunal does not consider this to be a particularly unusual situation, where elderly parents are nervous about international travel and want a younger trusted person to travel with them. 

17. Oral evidence was given at the hearing that the visa applicant’s family members who live in India – his wife, his mother and his father – have never travelled to Australia before.  The visa refusal that is the subject of this review followed shortly after a first refusal of a visitor visa, also in late 2019.  None of the family in India, including the visa applicant, has an adverse visa history relating to any substantive or bridging visa they have held. 

18. There is no evidence before the Tribunal indicating that the visa applicant’s two sisters, Manpreet and Jasmeen, have been non-compliant with any of their visa conditions in Australia.  Manpreet arrived onshore holding a subclass 309 visa in 2015 and is now an Australian citizen.  She gave oral evidence that Jasmeen resides in Melbourne holding a temporary work visa, granted after she finished her professional accounting studies. 

19. Manpreet presented at the Tribunal hearing as very credible.  She was responsive to questions and gave spontaneous and cogent answers to questions that were asked.  The visa applicant’s evidence was generally consistent with that of his sister.  After her second child is born, in late January 2022, Manpreet wishes her parents, but particularly her mother, to be able to travel to Australia to help with the children.  They need the visa applicant to travel with them, otherwise they cannot come, because they won’t travel alone. 

20. It was explained to the Tribunal by Manpreet that she and her husband and their daughter had not been able to travel to India to attend her brother’s wedding in 2019.  Since then,  because of COVID-19 travel restrictions, and Manpreet’s advanced pregnancy, they cannot visit India.  It is acknowledged that even if the visa is granted, it may be some time before people can travel from India to Australia for tourism purposes.  However, it is considered a significant relevant matter that if the visa is not granted, Manpreet’s Australian citizen children may be denied the opportunity to spend time with their grandparents because of their reluctance to travel to Australia alone.  

21. In this visa applicant’s circumstances, the Tribunal is satisfied that his close family and economic ties and responsibilities in India are strong and that there is no apparent disincentive for the visa applicant to return there when his visit to Australia is over. 

22. 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

23. 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