Parveen (Migration)

[2023] AATA 4871

Parveen (Migration) [2023] AATA 4871 (2 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Parveen Parveen

VISA APPLICANT:  Mr Sunny

REPRESENTATIVE:  Mr Rajdeep Singh Chahal (MARN: 1802753)

CASE NUMBER:  2214317

HOME AFFAIRS REFERENCE(S):          BCC2022/3054982

MEMBER:Linda Holub

DATE:2 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a 600 (Visitor) visa:

·cl 600.232 of Schedule 2 to the Regulations.

Statement made on 2 August 2023 at 11:27am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – sponsored by a prescribed person – ‘relative’ – brother – variation in spelling of parents’ names – matriculation certificate – family’s ration card – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 600.232

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 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicant applied for the visa on 4 August 2022. 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 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 600.232 which sets out the sponsorship requirements. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.232(2) because the delegate was not satisfied that at the time of application the applicant was sponsored by a prescribed person. On 27 September 2022, the review applicant applied to the Tribunal for a review of that decision.

4.    The review applicant appeared before the Tribunal on 17 July 2023 to give evidence and present arguments. I exercised my discretion to hold the hearing by video through the Microsoft Teams application as the review applicant resides in Canberra and I am a Sydney-based Member. I determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5.    The review applicant was represented in relation to the review.

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

BACKGROUND

7.    The review applicant was born in 1984 and is an Australian citizen by grant. Department records indicate that he first arrived in Australia in May 2007 as a holder of a Vocational Education and Training Sector (subclass 572) visa. In June 2011 he was granted a Skilled – Sponsored (subclass 866) visa.  He became an Australian citizen by grant in June 2016.

8.    The visa applicant is an Indian citizen born in 1985 in Baldi, Haryana. He purports to be the brother of the review applicant. He lives with his wife and children. In his visa application, the visa applicant stated he was seeking to travel to Australia for a family visit for a period of up to three months to visit his brother Parveen who is an Australian citizen. At the time of application, he planned to travel in the month of September 2022.

9.    Department records indicate that the visa applicant first travelled to Australia in November 2008 travelling on a Student (Class TU) (subclass 572) visa, granted in November 2008. In June and November 2011, he was granted further Student (TU 572) visas, with the last visa granted to cease in March 2013. The applicant departed on this visa in January 2012 and returned to Australia February 2012. In May 2013 the applicant was granted a further Student (TU 572) visa ceasing September. In September 2013 the applicant was granted a Temporary Work (Skilled) (subclass 457) visa valid until May 2016. The applicant made two return trips on this visa before departing in January 2016. Department records indicate the applicant has remained offshore since this time.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the visa applicant satisfies the requirements of cl 600.232. In particular, clause 600.232(2) provides that:

   The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and:

   (a) a relative of the applicant; or

   (b) a relative of another applicant who is a member of the family unit of the applicant; or

   (c) a relative of another applicant in relation to whom the applicant is a member of the family unit.

2. Regulation 1.03 of the Migration Regulations (the Regulations) defines ‘relative’ to include a close relative. A ‘close relative’ is defined in r.1.03 of the Regulations as a spouse or defacto partner, a child, parent, brother, sister, step-child, step-brother or step-sister of the person. Therefore, the Tribunal is satisfied that the visa applicant is sponsored by a relative.

3. In the present case, the review applicant (the applicant’s brother) has sponsored the visa applicant for this visa. He claims that he is a settled Australian citizen. The records of the Department indicate that he was conferred Australian citizenship in June 2016. Departmental records indicate that he was born in February 1984, and he is therefore almost 39 years old. The evidence before the Tribunal indicates he operates a newsagency business.

4. Therefore, the Tribunal is satisfied that the visa applicant is sponsored by a settled Australian citizen who is at least 18 years old.

5. The visa applicant claims that the sponsor is his brother.

6. In a statement provided to the Department on behalf of the visa applicant, it was submitted that neither the visa applicant nor his sponsor hold birth certificates as evidence they are brothers. As alternate evidence, school certificates of both the applicant and the sponsor which lists the name of the parents were submitted. It was noted that on their certificates, there is a variation in the spelling of the names of the parents. An affidavit was attached confirming the variation in the spelling of the names of the parents.

7. The certificate of matriculation in relation to the visa applicant from September 2001 refers to his father as Lahana Ram and his mother as Har Devi. The certificate of matriculation in relation to the sponsor from September 2000 refers to his father as Lahana Ram and his mother as Hardai.

8. The affidavit made by the visa applicant states that his mother's actual and real spelling of her name is Hardai but it is wrongly mentioned in his passport as Har Devi. It states that Hardai alias Har Devi is one in the same person and that the actual spelling of his father's name is Lehna Ram but wrongly has been mentioned in his passports as Lahana Ram and that the Lehna Ram alias Lahana Ram is one and the same person. It also states that had Hardai and Lehna Ram are his biological parents and also his brother’s Parveen.

9. In a submission to the Tribunal dated 16 July 2023, it was also submitted that in evidence of the family relationship school certificates of both the applicant and sponsor were provided and reference is made to the “slight variation in the spelling of the parent’s name in each of those documents”. The Tribunal was provided the same name affidavit referred to above.

10. The submission states that it is not uncommon in rural towns of India to misspell the names in documents. It states that the mother’s name is Har Devi instead of Hardai and their father’s name is spelled as Lahana Ram instead of Lehna Ram. However, both names belong to the same person.

11. To support their relationship, the Tribunal was requested to consider the following documents:

    ·Birth certificates of the applicant and sponsor.

    ·School certificates of the applicant and sponsor which lists the names of the parents.

    ·Affidavita given by the visa applicant and their mother.

    ·Passport of the visa applicant and old Indian Passport of the sponsor (which lists their address in India along with the names of their parents).

    ·Family registration certificate issued by the state authority in India which lists all family members of the household (#380 Village Badli, Distt. Karnal, Haryana, India).

Oral evidence

1. At hearing the Tribunal was told by the review applicant that in India they did not need their birth certificates to obtain a passport and that what was generally used was their matriculation certificates or the family’s ration cards. When asked why the ration card was not submitted as evidence of the relationship between the visa and the review applicants, the Tribunal was told that they thought the matriculation certificates would be sufficient.

2. I asked the review applicant why the visa applicant’s family name is not included on the matriculation certificate. The review applicant responded that for some reason the school only used his first name and to change it now would be a complex and costly process as all his documents only show his first name. When required to use a family name he uses the given name twice.

3. The applicant’s migration representative made essentially the same submissions regarding the significance of the matriculation documents and added that about three years ago, a centralised ID card system had been introduced in India. I was told that in the past the family’s ration card was used where a person did not matriculate.

4. The review applicant stated that he may be able to provide the family’s ration card which lists both he and the visa applicant as brothers having the same parents, although as they no longer use it, he is not sure if the family still has it.

Post hearing submissions

1. The applicant provided an original and translated copy of the family’s ration card on 29 July 2023. It appeared to me that on the translated version of the ration card, the translator updated the ages of all family members listed. On 31 July 2023, the applicant’s representative was asked to provide a translation that accurately reflected the original Hindi version, which he did the following day.

2. Having considered the information contained in the family’s ration card together with the other written and oral evidence, I am satisfied that the visa applicant is sponsored by his brother.

3. In view of the above, the Tribunal finds that the visa applicant is sponsored by a settled Australian citizen, who is at least 18 years old, and is a relative of the visa applicant.

4. Therefore, the Tribunal finds that the visa applicant satisfies the requirements of cl 600.232.

5. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a 600 (Visitor) visa:

   ·cl 600.232.

Linda Holub
Member

1.12     Member of the family unit

(1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

General rule

(2)A person is a member of the family unit of another person (the family head) if the person is:

(a)     a spouse or de facto partner of the family head; or

(b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

(i)has not turned 18; or

(ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

(iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

(c)      is a dependent child of a person who meets the conditions in (b).

This subregulation has effect subject to the later subregulations of this regulation.

…