Kiranjit Kaur (Migration)

[2021] AATA 5258

Kiranjit Kaur (Migration) [2021] AATA 5258 (5 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Bains Kiranjit Kaur

VISA APPLICANT:  Mr Ramandeep Singh Gill

CASE NUMBER:  2002845

HOME AFFAIRS REFERENCE(S):          BCC2019/6144443

MEMBER:Naomi Schmitz

DATE:5 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 05 November 2021 at 4:21pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – no previous travel to Australia – intention to comply with visa conditions – all other relevant matters – incentives to return to India – financial incentives – COVID-19 situation – applicant’s migration history – previous visa application refused – false documents and misleading information – 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 5 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 20 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 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.    

5. The review applicant appeared before the Tribunal on 28 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence from India. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. After this matter was constituted to the Tribunal Member on 7 October 2021, the Tribunal wrote to the review applicant and requested updated information and records to be provided by 21 October 2021 including; a copy of the visa applicant’s passport ensuring that all  passport country stamps are visible; an itemised list of all countries the visa applicant has travelled to, if any, including the  arrival and departure dates; evidence of the visa applicant’s current employment, if any, including recent evidence of pay slips and taxation returns; evidence of ownership of property, for example a certificate of title and approximate value; if the visa applicant is currently leasing property, evidence of the duration of the lease; any updated information and records about the visa applicant’s assets and financial situation such as money in bank accounts; and any other information relevant to the visa applicant’s activities or commitments  or relationships in his home.

8. On 21 October 2021 the review applicant provided various documents including; written submissions; a copy of the visa applicants passport with country stamps showing he has travelled to Singapore and Indonesia in 2018; a copy of the visa applicant’s wife’s passport; a marriage certificate; the birth certificate of the visa applicant’s two children; a copy of the visa applicants E-Visa to Singapore; a schedule of income and assets, a financial document regarding income earnt from the visa applicant’s clothing shop from 1 July until present; an agriculture income certificate; property documentation; a busines registration certificate for the visa applicant’s clothing shop; the review applicant’s passport; a letter confirming the review applicant was granted a Subclass s186 visa; birth certificates of the review applicant’s two children; a birthday invitation for the review applicant’s eldest child; and the review applicant’s bank account balance.

9. 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.

10. The visa applicant is a 34-year-old citizen of India. In the present case, the visa applicant 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 Tourist stream may be granted: cl 600.221.

11. The visa applicant requested a visitor visa for up to three months, with a planned arrival date of 10 December 2019 and a departure date of 10 January 2020.

12. 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)).

13. In the present case, the visa applicant has not previously travelled to Australia. Consequently, there is no demonstrated compliance or non-compliance with previous visa conditions upon which the Tribunal can use to assess whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

14. 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 600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

15. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201 given he has applied for a visitor visa for the purposes of visiting family and the short duration of the stay. The Tribunal accepts that the visa applicant will be accommodated and financially supported by the review applicant during his stay in Australia. The Tribunal is also satisfied that the visa applicant has personal savings which would be adequate to support himself during his stay without working.

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

17. The visa applicant gave evidence that the purpose of his visit was to see his sister who he has not seen since December 2018, her husband and two children currently aged seven and 11 years and to see Australia. He intended to stay for approximately three to four weeks. The visa applicant’s wife and two children would not be accompanying the visa applicant. The review applicant originally invited the visa applicant to attend her housewarming party, however the visa applicant’s visitor visa was refused. The visa applicant now seeks the visa to see his sister and attend her sons joint birthday party scheduled in April 2022. A copy of the housewarming and birthday party invitations were provided. The Tribunal accepts this is the purpose for the visa applicant travelling to Australia.

18. The Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside India. The visa applicant stated he has travelled to Singapore and Indonesia between 27 September and 4 October 2019. A copy of the visa applicant’s visa to Singapore and passport country stamps were provided.  

19. The Tribunal accepts that the visa applicant has undertaken the above travel. However, the Tribunal does not accord compliance with visas during this travel with significant weight, due to the short duration. The Tribunal also places limited weight on this previous travel as evidence that the visa applicant intends a genuine temporary stay, as the visa applicant has ties to Australia, namely his sister the review applicant, that he did not have in the above named countries where no immediate family members reside.

20. The Tribunal enquired where the visa applicant’s family live. The visa applicant stated his only family in Australia is the review applicant, her husband and her two sons. The visa applicant currently resides with his parents, in his parents’ home, with his wife and two young children aged three and six years in Galib Kalan Village, Punjab, India. The visa applicant also has a brother and extended family including aunts, uncles and cousins. He also has an uncle and cousin who reside in Canada. The review applicant gave evidence of the same, adding that the visa applicant’s wife and children were financially dependent on the visa applicant. The Tribunal accepts the visa applicant and review applicant’s evidence that there is family in India, and places some weight on the visa applicant’s wife and children who are financially dependent on him, but ultimately is not satisfied that these family links would provide a sufficient incentive to return and are outweighed by other factors discussed below.

21. The Tribunal enquired as to what incentives the visa applicant had to return to India. The visa applicant stated he had recently opened a boutique clothing store in January 2021, which was ‘going well’ with lots of ‘links’. An income tax document was produced showing the shop had generated 295,670 INR equivalent to $5,262.40AUD for the end of financial year 2021. The Tribunal Member noted this differed to the occupation listed in the visa applicant’s original visa application, namely being a labourer and hairdresser and sought an explanation. The visa applicant stated due to COVID-19, the visa applicant had to close his hairdressing salon which he operated with his wife, who like him, is a qualified hairdresser. He stated his family have a wheat and rice farm which they have had for generations, but that he no longer undertook labour work on it, instead outsourcing and employing other people to harvest the farm.

22. While the Tribunal accepts the visa applicant has had a career change, the Tribunal places limited weight on the visa applicant’s clothing shop, due to the infancy of his business which has traded for less than a year. The Tribunal is not satisfied that the business is profitable based on the financial records produced and is not satisfied it would serve as an economic incentive to return to India. Limited weight is also placed on the visa applicant’s involvement with his father’s farm, due to the visa applicant ceasing to work on it and employing third parties to harvest the farm. The visa applicant also gave evidence that there was not much ‘farm work to do between seasons’ and therefore even if the Tribunal were to accept that the visa applicant undertakes some farm work, it is not in a full-time capacity, and therefore the Tribunal is not satisfied that it would provide a sufficient incentive to return. No independent financial evidence was provided regarding the income generated by the farm despite a request by the Tribunal referred to in paragraph [7] above. The Tribunal does not accept the ‘self-declaration’ by the visa applicant that the farm earns 7,27,562.50 INR per annum equivalent to $12,882.17AUD and the Tribunal does not regard the income as a strong financial incentive to return to India.

23. The Tribunal enquired as to what assets, if any, the visa applicant has. The visa applicant stated he had savings in the sum of 5,25,211.41 INR equivalent to $9,298.84 AUD and provided a copy of his saving bank account in support which the Tribunal accepts. The visa applicant claimed to own a home (his parent’s home) and his father’s farm stating because he will inherit it sometime in the future, that it was his property. The review applicant submitted the same. The Tribunal does not accept that the visa applicant owns any property, as the visa applicant’s father is not deceased and the visa applicant is yet to inherit his father’s house and farm. The Tribunal places limited weight on the visa applicant’s personal savings as an incentive to return to India, as the quantum is small and the money could be easily transferred or accessed remotely from Australia or withdrawn. The visa applicant claimed to own a motor vehicle and a scooter. The Tribunal places limited weight on the visa applicant owning a car and scooter, given they can be easily transferred or sold.

24. During the hearing, the review applicant submitted that her family has a good migration record and referred to her mother and father who have both travelled to Australia on Visitor visas (tourist) and returned in compliance with their visas. After the hearing, the Tribunal  obtained the travel movement records of the review applicant’s parents, which confirmed that the review applicant’s mother has travelled to Australia on three occasions, between 26 November 2011 and 29 December 2020 and her father on two occasions, between 28 December 2014 and 29 December 2020 each on Visitor visa (tourist) Subclass 600 visas and complied with their visas. The Tribunal accepts the review applicant evidence, however notes that the review parents are in a different situation than the visa applicant, being significantly older, namely both in their 60s and have various assets, unlike the visa applicant who has little assets and new business. Accordingly, limited weight is placed on the fact that the review applicant’s family have complied substantially with the conditions of other visas which may be a relevant consideration for cl 600.211(c).

25. The Tribunal put to the visa applicant his migration history, namely that in 2013 he applied for a student visa which was ultimately refused in 2014, due to providing false documents and misleading information pursuant to PIC4020. The Tribunal put to the visa applicant that his previous application indicated an intention to reside in Australia on a long-term basis. The visa applicant stated ‘at the time many students from India were travelling to Australia for studies’ and ‘that things had now changed’ for him due to having a ‘business, family and kids’. The Tribunal also put to the visa applicant his sister’s migration history, namely that she originally visited Australia on a student visa and subsequently applied for a s186 employer nominated working visa and obtained permanent residency as a result. In light of this information and the visa applicant’s skill set, including being a qualified hairdresser, business entrepreneur and farm labourer, he was asked why he would not attempt to convert to a similar working visa as a means of staying permanently in Australia. The visa applicant stated that was his sister’s choice, that he has a business that is doing well, and that he did not have such plans and ‘would have to start from zero’.

26. Under the natural justice provisions pursuant to s359AA of the Migration Act, the Tribunal put to the review applicant, both the visa applicant and review applicant’s migration history outlined in paragraph [25] and was provided with the opportunity to comment. The review applicant similarly maintained that ‘that time was different’ and before the visa applicant wanted to come to study, but is now ‘settled’ and would return. She also gave evidence that she would be prepared to lodge a security bond in the sum of $20,000.00AUD to guarantee the visa applicant’s return to India. The Tribunal has considered the visa applicant and review applicant’s evidence, but ultimately is not persuaded after weighing up all the evidence which is summarised below.

27. The Tribunal has also taken into account as a relevant factor pursuant to cl 600.211(c), the situation of a visa applicant’s home country, India, as this may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report, which discusses India’s economy, health care system and the impact the COVID-19 pandemic has had on India. The report details that in 2019 the Indian economy suffered a slowdown with there being a lack of growth in wages and jobs. India’s economy has also been impacted sharply by the COVID-19 pandemic resulting in it entering into its first ever technical recession in the second quarter of the financial year of 2020 and 2021. The World Bank classifies India as a lower middle-income country. India’s health system faces a number of challenges, including a shortage of infrastructure such as personal protective equipment and testing regime and a lack of skilled health sector workers. The COVID-19 pandemic has placed strain on India’s health system, with the number of confirmed cases exceeding 9.2 million and with there being over 449,538 deaths. As of September 2021, globally India has the second highest number of cases and deaths from COVID-19. The Tribunal member contrasted India’s economic recession, health care system and COVID-19 situation with Australia’s much stronger economy, better health care system and less COVID-19 cases and deaths and asked in light of these differences, why would this not be a disincentive to return.[1]

    [1] Department of Foreign Affairs and Trade Country Information Report – India dated 10 December 2019 and India COVID-19 Situation Indian Government Response to COVID-19 – Telangana and the COVID-19 crisis

28. In response, the visa applicant stated that all countries have suffered from the COVID-19 pandemic, but that he had survived and supported other people. Similarly, the review applicant stated that the visa applicant had not been affected much, that he was living in a  quiet and safe area, that her parents earnt good money and her brother was living a happy life with his family.

29. The visa applicant gave evidence that he did not have any well-founded fear of any form of persecution in India due to his race, religion, nationality, membership of a particular social group or political opinion. The visa applicant is Sikh which is the dominant religion in the state of Punjab which DFAT assess as generally facing a low level of official and societal discrimination and violence.[2] The review applicant gave evidence of the same. The Tribunal accepts the visa applicant and review applicant’s evidence. The review applicant also gave evidence of returning to India to see the visa applicant since becoming a permanent resident and has no security concerns. 

    [2] Ibid

30. The Tribunal has considered all matters carefully. The visa applicant has a valid reason to visit Australia to see his sister. The visa applicant has travelled a total of eight days in the past to countries where no family members reside and therefore limited weight can be placed on it. While there are incentives to return to India, including his wife, children and family, there are clearly incentives to remain in Australia. India has suffered economically and COVID-19 has had a significant impact on the Indian population and health system. The visa applicant does not own any property in India and has only recently started a new business, with its success yet to be seen. He no longer undertakes farm work, instead outsourcing to outside parties. The Tribunal does not regard his savings, motor vehicle and scooter as sufficient incentives to return for reasons outlined above. While the visa applicant and review applicant denied that the visa applicant had an intention to work in Australia, Australia is no doubt more prosperous country and offers far more opportunities. While the visa applicant and review applicants parents have complied with their visas, they are in a considerably different situation to the visa applicant and therefore the Tribunal accords their compliance with limited weight. The Tribunal is not satisfied that payment of security allays its concerns about the applicant having a genuine intention to stay temporarily in Australia. 

1. Thus, considering all these matters cumulatively, even though there are some incentives to return, the Tribunal is not 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 not met.

   DECISION

2. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

   Naomi Schmitz
   Member