Rajinder (Migration)

[2018] AATA 1609

Rajinder (Migration) [2018] AATA 1609 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Singh Rajinder

VISA APPLICANTS:  Mr  Davinder Singh
Mrs Simerjit Kaur
Mr Muskan
Miss Ekamjot Kaur Sahota

CASE NUMBER:  1802010

DIBP REFERENCE(S):  BCC2017/4907750

MEMBER:Melissa McAdam

DATE:6 March 2018

PLACE OF DECISION:  Sydney

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

·cl.600.211 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in relation to the other visa applicants.

Statement made on 06 March 2018 at 5:31pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visa) – Tourist stream – Attending relative’s birthday party – No jurisdiction in relation to the second, third and fourth named applicants – Genuine intention to stay temporarily

LEGISLATION

Migration Act 1958, s 65, 338

Migration Regulations 1994, Schedule 2, cl 600.211, 600.212, 600.611, Schedule 8, Condition 8101, 8201

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 Immigration on 19 January 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The review applicant was represented in relation to the review by his registered migration agent.

3. The visa applicants applied for the visas on 21 December 2017. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Tourist stream.

4. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (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.

5. The visa applicants provided the following information in their visa applications:

   a.The visa applicants are husband, wife and their two children.

   b.They are citizens of India.

   c.They each want to visit Australia to attend the birthday party of the review applicant’s daughter on 11 March 2018.

   d.The review applicant is the brother of the visa applicant, Mr Davinder Singh.

   e.The review applicant’s wife, Mrs Rajwant Kaur, is the sister of the visa applicant, Mrs Simerjit Kaur.

   f.Mr Davinder Singh has  been self-employed as the owner and director of ‘Sahota Transport’, since May 2006.

6. The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211 because they did not provide sufficient evidence of strong personal employment or financial incentives to return to India.

   Jurisdiction

7. Section 338 of the Migration Act defines ‘Part 5 reviewable decisions’. Relevantly to this application s.338(7) states:

   s.338(7) A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

   (a)   the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

   (b)   a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen; and

   (c)   particulars of the relative concerned are included in the application.

   First named visa applicant

8. The review applicant is the first named visa applicant's brother. Therefore the decision relating to the first named visa applicant satisfies s.338(7). The review applicant has standing to apply for review so the Tribunal finds it has jurisdiction in relation to the first named visa applicant.

   Second named visa applicant

9. The review applicant is the second named visa applicant's brother-in-law. Therefore the review applicant does not come within the list of relatives set out in s.338(7)(b), in relation to the second named visa applicant.

10. The Tribunal notes however that the second named visa applicant also named her sister Rajwant Kaur, who is an Australian citizen, in her Visitor visa application, and referred to her as providing support for her visit in Australia. The Tribunal therefore finds that the decision in relation to the second named visa applicant, Mrs Simerjit Kaur, is a Part 5 reviewable decision.

11. However in relation to Mrs Simerjit Kaur, only her sister has standing to apply for review of her decision, not her brother-in-law, under s.347(2)(c) of the Act.

12. The Tribunal therefore does not have jurisdiction in this review application in relation to the second named applicant, Mrs Simerjit Kaur.

13. The Tribunal notes that, as at the time of this decision, the possibility remains for Mrs Rajwant Kaur to lodge a review application in relation to the decision to refuse to grant Mrs Simerjit Kaur a Visitor visa.

    Third and Fourth named visa applicants

14. The review applicant is the uncle of the third named visa applicant and the fourth named visa applicant. Therefore the review applicant does not come within the list of relatives set out in s.338(7)(b), in relation to the third and fourth named visa applicants. Their aunt and cousin are also named in the visa application but these relatives also do not fall within those listed in s.338(7)(b).

15. The Tribunal therefore finds that the decisions relating to the third named visa applicant and the fourth named visa applicant are not Part 5 reviewable decisions. The Tribunal has no jurisdiction in relation to the third named visa applicant and the fourth named visa applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The review applicant appeared before the Tribunal on 6 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife, Mrs Rajwant Kaur. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

17. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the first named 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.

18. In the present case, the first named visa applicant, Mr Davinder Singh, seeks the visa for the purposes of visiting his brother, sister-in-law and niece in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

19. 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)).  Mr Davinder Singh has not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by him.

20. The Tribunal must also consider whether Mr Davinder Singh 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.

21. The Tribunal accepts that Mr Davinder Singh will be accommodated and supported by the review applicant while in Australia. The Tribunal accepts that Mr Davinder Singh has personal savings and sufficient funds to support himself during a short visit to Australia. There is no indication before the Tribunal that he intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied he intends to comply with condition 8101.

22. There is no evidence or indication that Mr Davinder Singh has any interest or need to study in Australia. The Tribunal is therefore satisfied he intends to comply with Condition 8201.

23. The Tribunal accepts that Mr Davinder Singh is a married man with two young children,  from the Punjab in India. The Tribunal accepts that his aged parents and other relatives also live in his home area. The Tribunal accepts he has responsibilities for the care of his parents in India. The Tribunal considers that the presence of these close family members and relatives represent significant incentive for Mr Davinder Singh to return to India after a short stay in Australia.

24. The Tribunal accepts that Mr Davinder Singh has stable and valued income from his transport company in India. 

25. The Tribunal notes that the review applicant’s parent have  previously travelled to Australia on two occasions and they complied with their visa conditions according to the evidence before the Tribunal.

26. The Tribunal notes that the review applicant’s aunt also travelled to Australia in 2016-2017 and complied with her visa conditions according to the evidence before the Tribunal.

27. The Tribunal notes that the review applicant’s wife’s sister and nephew have travelled to Australia and complied with their visa conditions according to the evidence before the Tribunal.

28. The Tribunal gives substantial weight to the good migration history of the applicants’ relatives in Australia. The Tribunal also acknowledges the importance to the review applicant and his wife, of maintaining a good reputation with regard to their family and relatives’ immigration compliance in Australia. 

29. The Tribunal notes the review applicant’s wish to sponsor other family members to visit Australia in the future, including his parents again; as well as the review applicant’s wife’s wish to sponsor her parents to visit Australia.  The Tribunal considers this further motivation for them to ensure Mr Davinder Singh does not breach any of his visa conditions and that he departs Australia before the expiry of his visa. 

30. The Tribunal notes the review applicant’s evidence that he is able to lodge a security deposit to ensure his brother’s compliance with his visa conditions. The Tribunal accepts his evidence  that losing a large sum of money would be financially detrimental as he has financial obligations including mortgage repayments to make.  The Tribunal considers that in such circumstances the imposition of a security deposit would add further incentive for the applicants to ensure Mr Davinder Singh complies with his visa conditions.

31. For the above reasons the Tribunal is satisfied that Mr Davinder Singh, the first named 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

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

    ·cl.600.211 of Schedule 2 to the Regulations.

33. The Tribunal does not have jurisdiction in relation to the other visa applicants.

    Melissa McAdam
    Member