Nisha Rani (Migration)

[2024] AATA 3175

Nisha Rani (Migration) [2024] AATA 3175 (28 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nisha Rani

VISA APPLICANT:  Mr Gaurav Kumar Kamboj

CASE NUMBER:  2307944

HOME AFFAIRS REFERENCE(S):          BCC2023/2147358

MEMBER:Paul Windsor

DATE:28 August 2024

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 28 August 2024 at 8:42 am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – travelling with mother to visit sister – genuine temporary entrant and compliance with conditions – incentives to depart or remain – property, small business and savings – extended family, community ties and church leadership position – mother’s previous visas and travel to Australia, and applicant’s previous travel to another country and visa refusals for Australia – sponsor’s intention to maintain sponsorship record – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, 600.612, Schedule 8, cl 8531

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 21 April 2023 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 5 April 2023. 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.

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 they were not satisfied he genuinely intends to stay temporarily in Australia.

5. In reaching this conclusion the delegate noted that the visa applicant has a small-scale business but considered he had not sufficiently demonstrated any regular income or savings pattern. The delegate was not satisfied that the visa applicant had provided sufficient evidence to demonstrate he had strong financial, employment and/or personal ties to India which would provide an incentive for him to abide by the conditions of the visa, if granted, and depart Australia at the end of his authorised temporary stay.

6. The review applicant sought review of this decision on 6 June 2024. She provided the Tribunal with a copy of the delegate’s decision record.

7. The review applicant appeared before the Tribunal via videoconference on 27 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse, Mr Ashwin Kumar. The visa applicant gave evidence by telephone from India, as did Mr Ramesh Kumar, the visa applicant’s pastor. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. 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)).

12. As the visa applicant has not previously held an Australian visa or travelled to Australia, this factor is not relevant in his circumstances.

13. 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.

14. The visa applicant is the 33 year old brother of the review applicant. The evidence before the Tribunal indicates that he is single and lives with his mother in her home in a village in the Karnal district of Haryana state, India. His father passed away in December 2022. He runs a small business, the Angel Fruit Chat and Juice Corner, in the town of Karnal, and has one staff member. Evidence submitted to the Tribunal indicates this business is profitable and provides an annual income for the applicant equivalent to approximately AUD 12,500. He also has assets including a residential property, a plot of land, a car, and the equivalent of approximately AUD 10,000 in savings. He indicated at the hearing that, if granted the visa, his business would be looked after while he is visiting Australia by his employee under the supervision of one of his cousins.

15. The visa applicant indicated that, apart from his mother, he has aunts, uncles and cousins living in his local community. He said he also has his ‘church family’. He indicated he has close ties with his local community.

16. In his oral evidence to the Tribunal, the visa applicant’s pastor, Mr Ramesh Kumar, indicated the visa applicant has a significant role with his local Pentecostal church, which has a congregation numbering 500-600 worshippers. Mr Ramesh Kumar described the visa applicant as a leader at the church, just below himself, with responsibility for one of the two groups that worship at the church. He commented that if he is away on a Sunday, the visa applicant takes care of the church. He added that the visa applicant is also the church’s keyboard player.

17. The review applicant indicated that she came to Australia sponsored by her husband on a Partner visa in 2018. Her husband, who is an ethnic Indian Fijian national, indicated he came to Australia from Fiji in 2008 on a Business Long Stay visa and subsequently gained permanent residence through the Regional Sponsored Migration Scheme. The review applicant and her husband are currently living in Shepparton with their 6 year old daughter.

18. The visa applicant has visited Fiji on two occasions, in 2015-16 for 11 months, during which time he undertook a computer course, and again in 2017 for the wedding of his sister and   Mr Ashwin Kumar, which took place in Fiji.

19. The Visitor visa application indicated that it was intended the visa applicant would travel to Australia in May 2023 with his mother so the family could spend some time together following the death of the visa and review applicants’ father. The review applicant indicated that her mother was granted a multiple entry visa but her brother’s visa application was refused. He had previously been refused visas to visit Australia in June and October 2018 and in June 2022. The review applicant indicated that her mother and father had previously visited Australia on two occasions and her mother has visited on three further occasions since she was granted the current visa, abiding by the conditions of their visas on each occasion.

20. Mr Aswin Kumar commented that both he and his spouse are immigrants of the Pentecostal Christian faith for whom family is very important. He stressed that they know the importance of playing by the rules so are very conscious of the need to ensure that family members, including his mother, who wish to visit them in Australia abide by the rules so that their reputation as reputable sponsors is not tarnished. He indicated that the visa applicant wishes to see how his sister lives in Australia and to see their new house, which they purchased in 2022, but stressed that he will return to India after visiting to Australia.

21. Considering the available evidence, the Tribunal is satisfied that the visa applicant will abide by the conditions of the visa, if granted. The Tribunal is satisfied that he genuinely wishes to visit his sister and her family in Australia rather than wishing to work illegally or undertake study or training in excess of three months.

22. The Tribunal has also considered all other relevant matters (cl 600.211(c)). While the visa applicant’s income is relatively modest by Australian standards, the Tribunal accepts his oral evidence at the hearing that it provides a satisfactory level of income for him which is significantly higher that what he would earn as a salaried employee. The Tribunal finds that he is committed to his business and this provides an incentive for him to return to India. The Tribunal also finds that he has strong connections to his local community including his mother, extended family comprising uncles, aunts and cousins, and his church community, within which he plays a significant role. The Tribunal is satisfied that the visa applicant will depart Australia within the stay period permitted by the visa.

23. 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

24. 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.

    Paul Windsor
    Member