Patel (Migration)

[2021] AATA 4768

Patel (Migration) [2021] AATA 4768 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ketankumar Govindbhai Patel

VISA APPLICANT:  Mr Yogeshkumar Govindbhai Patel

CASE NUMBER:  1936505

HOME AFFAIRS REFERENCE(S):          BCC2019/5620177

MEMBER:Jennifer Cripps Watts

DATE:7 December 2021

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 7 December 2021 at 6:45pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – no previous visa or travel by applicant, but compliant travel by other family members – school-aged children and extended family in home country – offer of payment of bond – decision under review remitted

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 15 November 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 7 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 visa was refused because Minister was not satisfied that the applicant had the requisite genuine intention to stay in Australia temporarily.

5. The review applicant appeared before the Tribunal on 7 December 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, the visa applicant seeks the visa for the purpose of visiting an Australian citizen. This is a purpose for which a visa in the Tourist stream may be granted, as specified in cl.600.221(a).  In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether they have complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

8. At the time of application, the review applicant provided a statutory declaration sworn on 30 October 2019, declaring that he would bear all costs for the visit of his brother (the visa applicant) and his wife, including all travel and related expenses from India to Australia.  The review applicant gave updated evidence, under oath at the Tribunal hearing, that this is still the case.  He also offered to pay a bond if necessary.

9. The Tribunal has considered relevant information in the documents provided by the visa applicant, including his business registration, partnership deed, property valuation, bank statements and the support documents from the review applicant, together with the review applicant’s oral evidence at the Tribunal hearing.  He gave his evidence spontaneously and cogently and was considered to be very credible. 

10. 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 he has complied substantially with the conditions to which any other visa the applicant has held were subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

11. The visa applicant has never held an Australian visa or travelled to Australia before.  His wife, Devyani, applied for a subclass 600 visa at the same time as the visa applicant, to accompany him to visit his brother, but her visa was also refused.  They lodged the applications on 7 November 2019 and the visas were both refused on 15 November 2019.  The visa and review applicants’ parents visited Australia for six months, in 2011/2012, and their older sister and her husband visited for about three months in 2019.  They all departed Australia before their visas ceased.

12. In consideration of likely compliance by the visa applicant, the Tribunal has considered the above visa history of his close relatives in India, and also of the review applicant.  The review applicant, Mr Ketankumar Govindbhai Patel, arrived in Australia over 12 years ago holding a skilled independent regional work visa.  He went to live and work in Griffith in regional New South Wales and, after acquiring permanent residency and then citizenship, he stayed on and continues to live in Griffith with his wife, a permanent resident, and son, an Australian citizen.  The review applicant started his own business in Griffith in 2014 and is the 100 percent owner of Metro Petroleum Griffith, his wife works for Baiada Enterprises, and their son attends one of the local high schools..  They bought a new house in Griffith at the end of 2019.  By all accounts, they are successful and community minded citizens.  There is no information before the Tribunal that indicates that the review applicant has ever been non-compliant with visa conditions when he was a visa holder.

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 600.611(4)):

    ·8101 – must not engage in work in Australia

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

14. There is no information before the Tribunal to indicate that the applicant is intending to work or study during his intended relatively short visit of less than three months.

15. The Tribunal has also considered all other relevant matters (cl 600.211(c)).  The visa applicant has two children in India, born in 2007 and 2012, who will most likely remain in India with their grandmother if their parents travel to Australia as tourists.  At the Tribunal hearing, the review applicant was asked if the children might accompany their parents to visit and he said he would be very happy if the children also came to visit, primarily so they could spend family time with their cousin, his son.  Although there is no plan to bring them, the Tribunal does not weigh negatively any intention that the visa applicant may settle on in the future to have his children accompany him to Australia for a holiday to see their family.

16. While economic conditions in India are not likely to be as robust as they are in Australia, the visa applicant has significant ties to his home country.  His father passed away in 2020 and the visa applicant’s mother lives with him and his family.  He also has two sisters and their families who live nearby.  While the general conditions in the visa applicant’s home country may not, objectively, be as favourable as they are in Australia, the Tribunal is satisfied that the visa applicant’s personal ties in India are strong and grounded.

17. 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

18. 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.

    Jennifer Cripps Watts
    Member