Maninderjit Kaur (Migration)

[2022] AATA 176

Maninderjit Kaur (Migration) [2022] AATA 176 (27 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs  Maninderjit Kaur

VISA APPLICANT:  Mr  Lovepreet Singh

CASE NUMBER:  2004443

HOME AFFAIRS REFERENCE(S):          BCC2020/446694

MEMBER:Naomi Schmitz

DATE:27 January 2022

PLACE OF DECISION:  Melbourne

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 27 January 2022 at 7:17am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant undertaking Masters degree in home country – intended sightseeing list – family commitments in India – willingness to provide a security bond – impact of the COVID19 pandemic – large family network in India – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.611

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 2 March 2020 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 15 February 2020. 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 visa 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 24 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence from Punjab, India.

6. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the visa applicant who is currently living in India and the review applicant who is currently residing in Sandhills, New South Wales. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams. No concerns were expressed by the review applicant or visa applicant about the hearing being conducted in this manner, nor was there any indication that the review applicant or visa applicant had any difficulty in understanding or responding to the questions being put during the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. After this matter was constituted to the Tribunal Member on 7 January 2022, the Tribunal wrote to the review applicant and requested updated information and records to be provided by 17 January 2022 including; a copy of the visa applicant’s passport ensuring that all  passport country stamps are visible; an itemised list of all the 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, such as evidence of recent pay slips, taxation returns or bank statements identifying the relevant pay deposits/transactions; evidence of ownership of property, for example a certificate of title or rates notice and approximate value of property;  if the visa applicant is currently leasing property, evidence of the duration of the lease, such as a lease contract; any updated information and records about the visa applicant’s assets and financial situation such as money in bank accounts, identifying the quantum in the financial statement; and any other information relevant to the visa applicant’s activities or commitments or relationships in his home, including family, such as a marriage certificate and the birth certificate(s) of the visa applicant’s child/children.

9. In response the review applicant provided: the visa applicant’s Bachelor of Commerce certificate from the University of Punjab; the visa applicant’s Bachelor of Commerce academic transcript; a S.G.G.S Khalsa College identification card 2021-2022 for his Masters of Commerce; a copy of the visa applicant’s passport; a written submission from the review applicant responding to the Tribunal’s letter; a bank statement dated 12 January 2022 with an account balance of 901,003.93INR equivalent to $16,728.90AUD and a copy of the delegate’s decision record.

10. In the ‘Response to Hearing Invitation Form’ the review applicant requested that that the Tribunal take oral evidence from her partner Jobanpreet Singh and a family friend Navaldeep Singh Saini. The Tribunal responded to the request by asking that a statement by each witness be provided before the Tribunal considered whether oral evidence was necessary. In response the review applicant provided a short summary of their proposed evidence. The Tribunal Member considered the review applicant’s summary and determined that it was not necessary to call the witnesses.

11. 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.

12. The visa applicant is a 21-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 residing in New South Wales. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221.

13. The visa applicant requested a Visitor visa for up to three months, with a planned arrival date of 15 March 2020 and a departure date of 15 April 2020. The visa applicant proposed to accompany his parents who also applied for Visitor visas which were granted. Due to the visa applicant’s visa refusal and the COVID-19 pandemic, the visa applicant’s parents are yet to travel to Australia.

14. 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)).

15. 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.

16. 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.

17. 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 visit. The Tribunal is also satisfied that he will not engage in any study or training, given he is currently undertaking a Masters in Commerce degree in India. The Tribunal is also satisfied based on the financial evidence submitted that the visa applicant has sufficient savings to support himself. The Tribunal also accepts that he will be accommodated and financially supported by the review applicant and her husband during his stay in Australia. The review applicant gave evidence that she is currently employed by the New South Wales Department of Corrections in the information technology department, earning a base salary of approximately $70,000AUD, with the opportunity to do overtime. She also gave evidence that her partner is a truck driver earning a salary of approximately $60,000AUD to $70,000AUD.

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

19. Firstly, the Tribunal has considered the purpose of the visit. The visa applicant gave evidence that the purpose of his travel is to visit his sister and explore Australia. He confirmed he had no intention of remaining in Australia due to his current studies in which he is undertaking a Masters in Commerce, following the successful completion of his Bachelor of Commerce degree at the University of Punjab. The visa applicant commenced his Master of Commerce in September 2021 and will complete his studies in September 2023. Various records were provided which the Tribunal accepts. He stated he planned on staying for approximately one to two months, as he had not seen his sister in a long time and wanted to explore Australian culture.

20. The review applicant gave consistent evidence, stating she planned on taking the visa applicant and her parents to visit the Sydney Opera House, the Sydney Harbour Bridge, the Blue Mountains, New Castle and the Tooronga Zoo. She stated the last time she saw her brother was in February 2019, when she returned to visit her family in India and is therefore looking forward to seeing her brother if granted his Visitor visa to Australia. She explained that her parents have been granted Visitor visas to Australia and that she hoped the visa applicant could accompany and look after them during their visit, as they ‘are not very good with English’ and during her parents stay, the review applicant and her partner would still have to undertake some work and may not always be around. These are valid reasons to apply for a Visitor visa to Australia.

21. Secondly, the Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside India. The visa applicant stated he has not undertaken any travel. Consequently, there is no record against which any weight can be given as to whether the visa applicant has complied with conditions on previously held visas.

22. Thirdly, the Tribunal has taken into account the incentives to return to India at the end of his proposed visit. The visa applicant stated he had no intention of remaining in Australia, due to currently undertaking a Masters in Commerce in India which he will complete in September 2023. He stated after he completes his Masters, he plans to secure a job in India so that he can take care of his family. He explained his older sister similarly undertook a Bachelor and Masters degree and secured a well-paid job in India, and that he wants to follow in her footsteps. Another strong incentive to return was his parents, who as the only son in Indian culture, he is responsible for. He stated his father suffers from various health issues including diabetes and that his father depends on him. He also referred to having a large family network, including his parents, older sister, four uncles, four aunties and various cousins who he would return home to.

23. The visa applicant does not own or lease any property, living with his parents. The visa applicant is not married or in a relationship and does not have any children. The visa applicant does not own a motor vehicle or any other significant assets. The visa applicant is not employed and does not have a part-time job, being a full-time student. The visa applicant has $16,728.90AUD in savings. The Tribunal Member noted this account also contained the name of his mother and asked where the source of funds was from. He stated that his father gives him money and confirmed it was a joint savings account he holds with his mother. He stated his father is a retired government teacher and in receipt of a pension and provides him with financial support whilst studying. 

24. The review applicant gave consistent evidence, stating that her brother had a strong incentive to return to India due to currently undertaking a Masters in Commerce. She stated after finishing his Masters, he planned on obtaining a job in India like her sister who has a well-paid job in a government bank. She emphasised in her family education is considered paramount and that he would not abandon his studies. She stated her father was government teacher and various cousins are qualified civil engineers and that education in India, particularly where the visa applicant resides is regarded as very important. She also stated that her brother would return to look after her parents. She explained in Indian culture, it is the son who is responsible for caring for the parents. She gave evidence that the visa applicant is not employed and does not have any major assets, but emphasised that this is not uncommon due to his young age and being a full-time student. The review applicant also gave evidence of there being a large family network who reside in India, including her parents, her sister, two grandmothers and various uncles, aunties and cousins, all of whom reside close by. In contrast she and her partner are the only family members who reside in Australia, along with their two dogs.

25. During the hearing the review applicant submitted that her family had a good migration record and always complied with Australia’s migration laws. She referred to her sister, who travelled to Australia on a Visitor visa (tourist stream) and complied with the conditions of her visa and returned to India after her visit to Australia. She stated although her sister was aged 30 years at the time of visiting Australia and had employment working in an Indian government bank, she similarly did not own any property and was not married like her brother. The review applicant emphasised that she has always been a law-abiding citizen, and would ensure that her brother would do the right thing, otherwise he and her family would accrue a bad migration record. Travel movement records obtained by the Tribunal confirm that the visa applicant and review applicant’s sister, was granted a Visitor visa (tourist stream) on 13 November 2019. She arrived in Australia on 1 December 2019 and departed Australia in compliance with her visa on 27 December 2019. The Tribunal accepts the review applicant’s evidence and places significant weight on the fact that the review applicant’s sister has complied substantially with the conditions of other visas which may be a relevant consideration for cl 600.211(c). The review applicant presented as an honest and credible witness.

26. Although not required given the visa applicant has applied for a Visitor visa in the tourist stream, the review applicant gave evidence that she would be prepared to lodge a security bond in the sum of approximately $10,000.00AUD to $20,000.00AUD to guarantee the visa applicant’s return to India. The review applicant also stated she would be prepared to provide the Department with return air flight tickets.

27. The Tribunal has also taken into account the situation of a visa applicant’s home country, India, which 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 the facts put to him were true. He stated that India is a developing country, however that the government was working hard to control COVID-19 cases and restrict the number of COVID-19 deaths and was building more hospitals and hiring more health personnel. He agreed that the economy has been greatly impacted by COVID-19, but once COVID-19 settles, but believed India would get much better and denied the issues put to him would act as a deterrent to return. He also confirmed he was fully vaccinated. The same country information was put to the review applicant who denied these issues would act as a disincentive for her brother to return. She emphasised that her family lived a good life, with all her family members having good jobs, being well educated and having good facilities available, including health and aged care. She was very optimistic and claimed due to her brother’s strong academic history and education he had many opportunities available to him in India.

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 of the Sikh faith, which DFAT assess as generally facing a low level of official and societal discrimination and violence. 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 including recently from December 2018 to February 2019 and had no security concerns. The Tribunal notes that the review applicant obtained permanent residency through a Subclass 189 Skilled Independent Visa rather than a Protection visa.

30. The Tribunal has considered all matters carefully. There are a number of factors in the visa applicant’s favour, including him having a valid reason to visit Australia. The visa applicant has not travelled to Australia before or any other country outside of India, and therefore no weight can be placed on prior travel as evidence of an intention of a genuine temporary stay in Australia.

1. Although the visa applicant is not currently employed, does not own any property or have any major assets, the Tribunal is mindful that the visa applicant is young and therefore has not had the opportunity to acquire wealth and assets. Furthermore, his lack of assets must be viewed in the context of the visa applicant dedicating the past few years of his life to his education as a full-time student, attaining a Bachelor of Commence and now commencing a Masters in Commerce. From the visa applicant and review applicant’s evidence it was apparent how committed the visa applicant is to his studies and how important and highly valued education is to the visa applicant and his family, to which the Tribunal places some positive weight in the visa applicant’s favour. There is no evidence before the Tribunal that he wishes to cease his studies. Limited weight is placed on the visa applicant’s personal savings given the funds could be easily withdrawn, transferred or accessed remotely within Australia.

2. The Tribunal places some weight on the large family network in India. There is a substantial family network who reside in Punjab, India, in particular the visa applicant’s parents, older sister, two grandmothers and various uncles, aunties and cousins. In contrast, the visa applicant has very limited family in Australia, namely his sister and her partner. There is no evidence before the Tribunal that the visa applicant’s parents intend to remain in Australia and the Tribunal accepts the visa applicant and review applicant’s evidence that they will return. The Tribunal accepts the visa applicant and review applicant’s evidence that in Indian culture it is the son’s responsibility to care for their parents which the visa applicant is prepared to undertake.

3. The Tribunal is satisfied that the economic issues and COVID-19 pandemic have had little impact on the visa applicant who is double vaccinated and would not act as a disincentive to return and that the visa applicant does not have any fears of persecution.

4. The Tribunal places significant weight on the fact that that review applicant’s sister travelled to Australia on Visitor visa (tourist stream) and substantially complied with the conditions of her visa. The Tribunal accepts that if a security bond was required of the review applicant, the visa applicant would be highly motivated to ensure that he returns to India before the expiry of his visa due to financial hardship in losing a security bond caused to his sister, as well as adverse implications for future visa applications to Australia. The visa applicant and review applicant both presented as credible and truthful witnesses. 

5. 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

6. 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.

   Naomi Schmitz
   Member