Ravinder Kaur (Migration)

[2024] AATA 1469

Ravinder Kaur (Migration) [2024] AATA 1469 (17 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms  Ravinder Kaur

VISA APPLICANT:  Mr  Gurpreet Singh

REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)

CASE NUMBER:  2305419

HOME AFFAIRS REFERENCE(S):          BCC2023/1500573

MEMBER:Anne Grant

DATE:17 May 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 17 May 2024 at 1:15pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – visiting sister, and tourism – genuine temporary entrant and compliance with conditions – no previous visa or travel – extended family, full-time senior employment, family farm and established life – fiancée and plans to marry next year – parents in Australia when application made but now in home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 28 March 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 3 March 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 that he genuinely intended to stay temporarily in Australia for the purposes of seeing his sister, and tourism.   

5. The review applicant appeared before the Tribunal on 16 May 2024 by video conference from Western Australia to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, by video from India.   

6. The review applicant was represented in relation to the review, and the representative attended the hearing.

7. The Departmental file has been considered in this review, including the documents submitted by the review and visa applicants to the Department with the application.  The submissions made to the Tribunal directly have also been given consideration, and will be discussed further below. 

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 undertaking some tourism. These are purposes 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. The visa applicant has not travelled to Australia, nor has he ever held a visitor visa or a substantive visa.  The applicant’s compliance with the conditions of previous visas is therefore given no weight either in favour of or against the applicant’s intention to comply with the conditions of the visa and stay temporarily in Australia. 

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. In his letter to the department, dated 2 March 2023, the visa applicant stated that he has reliable employment as a senior sales officer at a company in India since January 2022, and also has commitments to the family farm.  He states that he has no plans to seek any form of employment while in Australia.  At hearing, the visa applicant gave evidence that he continues to work full time a a senior sales officer at a pesticide company which fits neatly with his role in the family farming business.  He is financially secure in India and would only be staying in Australia for a couple of weeks so would not work or study and would comply with all of the conditions of the visa, including departing in accordance with the visa permitted stay. 

15. I accept the visa applicant’s evidence that he intends to comply with all conditions of the visa, if granted.

16. The Tribunal has also considered all other relevant matters (cl 600.211(c)).  The visa applicant gave evidence that he lives with his parents and grandparents in the family home.  The family owns a farm, with crops of rice, wheat, cauliflowers, potatoes and peas. Although he works in a full time job, he also works on the farm. The only children in the family are he and his sister (the review applicant who is in Australia).  His roles on the farm include supervising labourers, purchasing seeds and marketing crops.  When his father was in Australia for three months, the visa applicant took on the full management role for the farm.  At present he will keep doing both jobs and so would have to return home after two weeks. 

17. The visa applicant gave evidence that he is in a relationship and plans to marry in January next year.  His fiancée is in India.  The review applicant confirmed this evidence.     

18. The visa and review applicants’ parents were in Australia when he applied for the visa but have since returned and intend to remain there.      

19. The visa applicant has provided evidence that he has financial resources which would enable him to meet his costs of travel to and around Australia.  He has four term deposits which do not mature until January 2025 with a combined value of 1,505,000 Indian rupees (approximately Aud$27,000) and ordinary savings of more than 800,000 rupees (around Aud$14,000).  His bank accounts reflect regular deposit and a consistent balance.   The review applicant has also demonstrated the financial capacity to provide him with accommodation and any financial needs during his visit.  I give the applicant’s financial resources some weight in favour of him being able to afford a holiday to Australia as he indicates.

20. In his written statement, the visa applicant states that he “has so many assets in India” that he must look after, that he will return after a short stay.  However, the information submitted in support of the application reflects that the non liquid assets (real estate) were not in his name, and I raised this with him at hearing.  The visa applicant clarified that although the family properties are still in his grandparents’ and parents’ names, they are considered to be also his, because they are owned by the family.   Eventually he will inherit the properties.  The review applicant confirmed this to be the case.  I accept that the family assets are considered to be partially assets owned by the visa applicant, even though they are not in his name.

21. The visa applicant gave evidence that he has no reason to fear persecution from any authority or person in India.  He stated that he is busy working and too busy to be involved in political matters.       

22. The review applicant gave evidence that she would ensure her brother returned in accordance with the terms of his visa, and confirmed that their parents visited in 2023 and returned in accordance with the conditions of their visas – (noting that her mother’s visa was extended while she was here because the review applicant decided to marry). The review applicant sponsored them also.  She noted that the visa applicant has family, work and his fiancée in India which he would want to return to, and is well established and financially stable there. He is very close to their grandparents in particular and would not consider staying in Australia.

23. The review applicant also indicated that she would be prepared to pay a security if requested by the department as she was confident her brother would depart in accordance with the visa, if granted.  I give this some weight as indicating her belief in her brother’s genuine intention to stay in Australia temporarily.

24. I accept the evidence given by the review and visa applicants.  Having considered the required and other relevant matters, I consider that the visa applicant has multiple incentives to return to India in accordance with his visa, (namely his family in India, his work, his family business, his fiancée and his established and successful life in India) which suggest he is genuine in his stated intention for a short temporary visit in Australia.  I consider that the incentives for him to return home at the end of his permitted stay significantly exceed the incentives for him to remain in Australia.  I am satisfied that the visa applicant genuinely intends to stay temporarily in Australia to visit his sister and see some of the country whilst here.

25. 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

26. 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.

    Anne Grant
    Member