Kiran (Migration)

[2024] AATA 531

Kiran (Migration) [2024] AATA 531 (15 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kajal Kiran

VISA APPLICANTS:  Mr Neeraj Kumar Joshi
Mrs Chetana Joshi            
Master Prabhveer Joshi   

CASE NUMBER:  2300582

HOME AFFAIRS REFERENCE(S):          BCC2022/5153519

MEMBER:Stephen Witts

DATE:15 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

Statement made on 15 February 2024 at 1:37pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to depart or remain – visa applicants living in parents’ house, managing farm and assisting with business – no previous travel but compliant travel by parents – review applicant’s mental health and regular travel – no appearance by visa applicants – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 on 12 January 2023 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 2 December 2022. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 delegate refused to grant the visas, on the basis that the visa applicants did not meet cl 600.211 because the delegate was not satisfied that the applicant genuinely intended a temporary visit to Australia.

5. The review applicant appeared before the Tribunal on 15 February 2024 to give evidence and present arguments.

6. The Tribunal notes that the visa applicants were invited to attend the hearing but did not attend.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicants seek the visas for the purposes of visiting family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

10. 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)).

11. The Tribunal notes that there is no evidence before it in regard to any substantive Visa breach by the applicants.

12. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

13. The Tribunal notes it has been provided with a copy of the relevant delegates decision record dated 12 January 2023 by the applicants.

14. In this decision it was asserted by the delegate that the primary applicant lacked an incentive to return to his home country regarding his personal circumstances. In particular the delegate asserted that the applicant may have had a business or employment but taking into account factors as a whole was not satisfied that the applicant intended a genuine temporary stay in Australia.

15. The Tribunal notes that it also received evidence prior to the hearing from the applicants which it has considered.

16. Included was a letter from a doctor of psychiatry from Western Health Hospital dated 25 January 2023 stating that the doctor concerned supported Mrs Kiran in her request for visa approvals for her brother Mr Joshi and her sister-in-law and nephew, applicants in this matter, as it would assist her in her treatment for depression and may improve her mental state.

17. Included also was a statutory declaration dated 8 June 2023 from Mr Arun Kumar Joshi stating that his son, the applicant, would like to visit his sister and her family as she has recently had a mental health problem and has given birth to a child. It was also stated that in India he owns a dairy farm that requires his management and that he has property to take care of and collect rent and that he is old and needs help and care from his son and that his wife and uncle also need assistance and that there is family property in India that will be transferred to his children upon his death.

18. Also included was a net worth statement dated 8 June 2023 from an accountant in India stating that the applicant, being the son of Mr Arun Kumar Joshi, has a net worth of approximately AU$400,000 made up of cash and bank balances, property and other assets.

19. Also included was a certificate of annual income from the same accountant in India stating that the applicant has an annual income of approximately AU$9400.

20. The Tribunal notes have also included was a National Australia Bank statement in the name of Mr S Singh, her husband, dated 22 December 2022 with a total credit of AU$51,000.

21. At the hearing the Tribunal had discussion with the review applicant regarding the application.

22. She stated that her brother has never visited Australia but that he did make one previous visitor visa application in 2018 that was refused. She stated that she often travels back to India to visit family and that she would generally visit India with her family every two or so years and was there very recently. She stated that her brother has never made any other types of visa applications to come to Australia.

23. She stated that he has a wife and a six-year-old who are also part of the application and that she would like them to have the ability to visit them in Australia. She stated that she also has another brother who lives in India who is married with 2 children, one aged 16 and one aged 20.

24. She stated that her brother and his family have never left India and do not have any international travel experience.

25. She stated that he assists in running their milk business and manages the dairy farm in conjunction with his parents. She stated that their mother also has a property which is being rented out.

26. She stated that they did have another brother but that he passed away in a traffic accident in 2022.

27. She stated that her father is currently in Australia on a visitor visa and the parents visit Australia often and that over the last few years they have visited Australia 7 or 8 times usually together and that they generally stay for between a few weeks to a few months and that they don’t particularly like being in Australia, but they come over when she requests assistance from them to look after the children.

28. She stated that she first came to Australia in 2009 dependent upon her husband’s student visa and that at some point after that they were successful in receiving a protection visa on the basis that she comes from a Hindu background and that her husband comes from a Sikh background and that her in-law’s family did not accept such a marriage.

29. She stated that they have 3 children, a son aged 15, and 2 daughters, one aged 5 and one aged 1. She stated that she spends most of her time looking after the children but has also recently reopened a hairdressing business in her own home. She stated that her husband is a truck driver.

30. She stated that she doesn’t understand why her brother cannot get a visitor visa as her parents have been able to travel to and from India on several occasions over the last few years and that he has a good life back in India and that she believes he intends to temporary visit.

31. The Tribunal has considered the evidence provided very carefully and has considered that the applicant does have an attachment to his home country via his family’s agricultural holdings however the Tribunal is concerned that the holdings referred to are in his family’s name and not his own and that he and his wife and child are living in the family home back in his home country which the Tribunal acknowledges is common practice, however, the Tribunal has taken account of the fact that the applicant is living in the family home and does not own his own home, and finds that the applicant and his family do lack clear incentives in this regard to return to their home country should they come to Australia as visitors.

32. The Tribunal also has considered that the applicants have never left India and have no international travel experience and finds also that this does indicate that their trip to Australia is a significant undertaking by them that would also suggest that they may seek to stay on a more long-term basis should they be successful in receiving a visa to come to Australia.

33. The Tribunal has also considered that the applicant has family employment back in his home country and notes that he does not have a genuine employment contract commitment to return to his home country after coming to Australia as a visitor as the agricultural holdings managed by his family could still be managed by his family, particularly his father, while he is in Australia on a more long-term basis, and therefore this does not constitute an incentive for him to return home. The Tribunal notes that it has been stated by an accountant that he does earn an annual income but that nevertheless this income is derived through family holdings and can be maintained in some form through family effort while he is in Australia.

34. The Tribunal has also considered that the applicant will inherit such family holdings, assumedly in conjunction with other members of the family, upon the death of his parents but finds that this is not affected by the applicant remaining in Australia on a more long-term basis and that therefore it would not constitute an incentive to return.

35. The Tribunal has also considered that the applicant is intending to come to Australia with his wife and child and that therefore he would be here in Australia with his immediate family and with his sister and her immediate family and that therefore this would indicate that he would lack an incentive to return home to his home country.

36. The Tribunal has also considered the review applicant’s statements regarding her mental health condition but notes that she has indicated that that has improved, that she does return to India to see her family regularly, and that she can continue to receive such care as she needs.

37. The Tribunal has also considered that the applicant’s parents have visited his sister in Australia on several occasions, and that their father is currently in Australia, but finds that the fact that their parents regularly return does not negate a consideration that the applicant himself may have a significant incentive not to return as he is a young man with his prospects before him and with his wife and family also visiting with him in Australia whereas his parents have a settled life back in their home country and may have more of an incentive to return.

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

39. For the above reasons the Tribunal is not satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl 600.211 are not met.

    DECISION

40. The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

    Stephen Witts
    Member