Navdeep Singh (Migration)

[2023] AATA 1865

Navdeep Singh (Migration) [2023] AATA 1865 (13 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr  Navdeep Singh

VISA APPLICANT:  Mrs Jasdeep Kaur

CASE NUMBER:  2214290

HOME AFFAIRS REFERENCE(S):          BCC2022/1971836

MEMBER:Louise Nicholls

DATE:13 June 2023

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 13 June 2023 at 8:48am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – strong family ties in home country – financial security and employment in home country – previous compliant family visits – desire for further family visits – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The visa applicant is a citizen of India and is 34 years of age. The review applicant is the visa applicant’s brother, and he is 39 years of age. He is an Australian citizen.

2. The visa applicant applied for a Visitor (Class FA) visa on 1 June 2022. She provided a number of documents, including identity documents for the visa applicant and the review applicant and other family members, financial, tax and employment documents for the applicants and family members and a statement of intention.

3. On 2 August 2022 a delegate of the Minister for Home Affairs refused to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. This is an application for review of that decision, and it was lodged on 27 September 2022. The review applicant provided a copy of the delegate’s decision record, identity documents, financial, educational and employment documents.

5. The review applicant appeared before the Tribunal on 26 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by conference telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

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.

   Background

10. The review applicant was born in Punjab State, India. His parents are living in his hometown of Jaitu. His father is a public official and his mother is a retired public official. He has one sister living in Punjab about 70 kilometres from his parents’ home.

11. The review applicant came to Australia as a student, he and his wife now both have nursing qualifications, and he is now an Australian citizen. They live in a suburb of Adelaide and have two children aged 11 and 8 years. They own their own home in Adelaide.

12. The visa applicant is married with one six-year-old daughter, and she lives with her husband, her daughter and her husband’s parents in their family home in Punjab State. She has qualifications in Information Technology and is currently working as a private tutor for IT students so that she can combine looking after her school age daughter with work. Her husband is a primary school teacher at the school at which her daughter attends. The review applicant has provided identity, employment and financial documents to support this evidence.

    Purpose of Visit

13. In the present case, the visa applicant seeks the visa for the purposes of visiting her brother and his family in Adelaide. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

    Compliance and intention to comply with visa conditions.

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. The visa applicant has not previously visited Australia and thus there is no evidence of non-compliance with conditions of previously held visas.

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 600.612):

    ·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.

17. The visa applicant and the review applicant have both given evidence, which the Tribunal accepts, that the visa applicant does not intend to work or study in Australia. Further she has acknowledged and understands that she will not be entitled to a substantive visa while remaining in Australia. The applicants also understand that she must not remain in Australia after the end of any permitted stay.

    Other relevant matters

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

19. The evidence indicates, and Tribunal finds, that the visa applicant is married with a six year old daughter living with her and her husband in Punjab State. She and her immediate family live with her parents-in-law and they provide the visa applicant and her husband with some support in caring for the couple’s daughter. The Tribunal accepts that the visa applicant has strong family ties in India which would act as an incentive for her to return to India at the end of any permitted stay.

20. The evidence indicates, and the Tribunal accepts, that the visa applicant and her husband enjoy secure financial and employment circumstances in India and that there is no incentive to remain in Australia for financial reasons.

21. The review applicant and visa applicant gave evidence that the social and political situation in Punjab State and in their community is stable and there is no conflict which might act as an incentive for the visa applicant to remain beyond any permitted stay. The available country information supports this evidence.

22. The review applicant gave evidence that he was mindful that the visa applicant’s compliance with visa conditions would be important in establishing a compliant migration history for herself and her immediate family members which would benefit the family in the long term if they wished to visit from time to time. The Tribunal also notes that the review applicant’s parents and parents in law have visited the family in Australia and have complied with visa conditions and returned before the end of their permitted stays. This indicates that the family are aware of the importance of maintaining a compliant migration history.

23. The review applicant gave evidence that he was willing to provide a financial surety for the visa applicant’s visit if required.

24. The review applicant gave evidence that the visa applicant has previously applied for visitor visas, and her applications have been refused. He was concerned that the history of visa refusals may have been taken into consideration in assessing the visa applicant’s current circumstances which he noted have changed significantly since she has married and had a young child.

    Conclusion

25. The Tribunal has considered those matters which support the visa application and notes there is no evidence before the Tribunal which would not support the application. The Tribunal has concluded that the visa applicant does have a genuine intention to stay temporarily in Australia for the purpose of visiting her brother and her brother’s family.

26. The Tribunal notes that; the visa applicant has strong family ties in India, she appears to have good financial support and some part time employment in India and that she and her husband live together with her parents in law who provide her with physical support and a level of family security. She also has the support of her own parents who live a relatively short distance away from her home. The visa applicant gave evidence that while she is eager to visit her brother, she does not want to disrupt her daughter’s schooling. She plans that her visit will be a short one with her parents in law and husband providing care for her daughter while she is away.

27. The Tribunal accepts the applicants’ evidence that they are aware that if the visa applicant is granted a visa and complies with all the conditions of her visa, that this will assist her and other family members in future visitor applications.

28. 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

29. 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.

    Louise Nicholls
    Senior Member