Reddy (Migration)

[2021] AATA 4256

Reddy (Migration) [2021] AATA 4256 (2 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Rajesh Shankar Reddy

VISA APPLICANT:  Mr Suresh Reddy Shankar

CASE NUMBER:  1934265

HOME AFFAIRS REFERENCE(S):          BCC2019/5627149

MEMBER:Linda Holub

DATE:2 September 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 2 September 2021 at 10:20am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visit for newborn nephew’s cradle ceremony – positive migration history – past compliance with visa conditions – strong incentives to return to country of residence – 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 25 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate after considering the information provided, was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out.

5.    On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

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 1979 and is an Australian citizen by grant. Department records indicate that he first arrived in Australia in September 2006 as a holder of a Subclass 457 Temporary (Skilled) visa. In February 2011 he was granted a Subclass 857 Regional Sponsored Migration Scheme visa. He became an Australian citizen by grant in September 2012.

8.    The visa applicant is an Indian citizen born in 1975 in Bangalore, Karnataka. He lives with his wife and children.

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.

1. In his visa application, the visa applicant stated he was seeking to travel to Australia for a family visit for up to three months. In particular, he planned to visit for his newborn nephew’s cradle ceremony. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

2. 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)).

3. Department records indicate that the visa applicant has not travelled to Australia before. He provided to the Department copies of his passport including entry and exit stamps as evidence of international travel. The visa applicant also provided copies of his UK and USA visas. His visa to the USA has validity for a ten-year period from February 2015 until February 2025 and his UK visa allows multiple entries until 26 January 2022.

4. The review applicant in his pre-hearing submission of 30 August 2021 stated that his parents as well as parents-in-law have visited Australia to help look after his children. His parents visited in Australia in the years 2007, 2010, 2012, 2014, 2015, 2017 and 2018. Department records indicate that the review applicant’s parents have been granted several Australian multiple entry visitor visas and visited in the years 2007, 2010, 2012, 2014, 2015, 2017,2018. There is no evidence to suggest that the review applicant’s parents did not comply with their visa conditions.

5. 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(2).

   ·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.

6. The review applicant is a specialist anaesthetist and his wife is also a medical practitioner. They have two children. Their parents have visited Australia to assist them with childcare but no other family members live in Australia. In a letter of 2 December 2019, the review applicant stated that he and his wife invited his brother to come for their son’s cradle ceremony as they do not have immediate family in Australia and do not often get to catch up with family given the distance. The family intended to get together mid next year during the children’s school break. 

7. The visa applicant provided to the Department a letter on his company letterhead and signed by himself dated 5 November 2019. In this letter he states that since 2014 he has been the CEO and Director of Brilyant IT Solutions Pty Ltd. The visa applicant provided his personal savings statement for the period of 1 April 2019 – 5 November 2019 from the Deutsche Bank previously submitted to the Department and in respect of his business, the Tribunal also has before it:

   a.a statement of the business accounts and a supporting letter from the company’s chief financial offer dated 5 November 2019.

   b.registration details of the visa applicant’s company Brilyant IT solutions Pty Ltd with Ministry of Corporate Affairs, Government of India, showing that the visa applicant and his wife are the Directors/Signatories of the company

   c.tax return statements for years ending 2018,2019 and 2020

   d.company audited report and financial records for year ending 2018 and 2019

8. In a letter of 2 December 2019, the review applicant wrote that the visa applicant runs and owns a successful start-up private IT company and employs more than 100 people.

9. Evidence before the Tribunal is that the review applicant will fund the visa applicant’s travel and he will stay with the review applicant during his visit.

Findings

1. Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for a few weeks for the purpose of visiting his brother and his family. The Tribunal accepts that the visa applicant can fund his own travel and will stay with the review applicant who will cover the cost of the visa applicant’s living expenses.  The Tribunal accepts that the visa applicant has no intention of working studying or undertaking any training in Australia. The Tribunal accepts that the visa applicant’s wife children and his company provide strong incentives for him to return to his country of residence at the end of his permitted stay in Australia.  The Tribunal has put positive weight on the visa applicant’s positive migration history and that of the review applicant’s close family relatives. Condition 8503 refers to entitlement and does not require compliance.  The Tribunal accepts that the visa applicant intends to comply with the conditions of the visa.

2. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

3. 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

1. 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.

Linda Holub
Member