Sharma (Migration)

[2023] AATA 2809

Sharma (Migration) [2023] AATA 2809 (17 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kumari Heena Sharma

VISA APPLICANT:  Mr Himanshu Sharma

REPRESENTATIVE:  Mr Suraj Handa (MARN: 0637649)

CASE NUMBER:  2213195

HOME AFFAIRS REFERENCE(S):          BCC2022/2863463

MEMBER:Scott Clarey

DATE:17 August 2023

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 August 2023 at 1:35pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – visiting sister and her family – genuine temporary entrant and compliance with conditions – incentives to remain or return – significant additional documentary evidence provided – professional employment, bank savings and family – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
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 24 August 2022 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 25 July 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 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 they were not satisfied that the applicant genuinely intended to stay temporarily in Australia.

5. No hearing was necessary in this matter as the Tribunal was able to determine in favour of the visa applicant on the papers, given the written submissions provided to the Tribunal by the applicant on 11 July 2023.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant (his older sister) and her family. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

9. In assessing the issues, The Tribunal has considered the documentary evidence submitted with the application (that included a statement from the review applicant) and the significant amount of additional documentary evidence that has been submitted to the Tribunal.

10. On 27 June 2023, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act. The Tribunal explained that it was considering whether the visa applicant met cl.600.211 of the Regulations which requires that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In the letter, the Tribunal invited the review applicant to provide information to support her claims that the visa applicant meets the criteria for the grant of the visa.

11. On 11 July 2023 the review applicant provided comprehensive submissions to the Tribunal in response to the Tribunal’s letter. The submissions included:

    ·Documents relating to the visa applicant’s financial affairs in India and his ability to support himself in Australia.

    ·Bank statements detailing funds in accounts held in the name of the visa applicant. 

    ·Various documents relating to the visa applicant’s employment at the ‘Office of the Director General, Treasuries and Accounts, Government of Haryana’, where he has been employed as in the data management unit since January 2015.

    ·A tax return for the applicant.

12. 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)). Records indicate that the visa applicant has not travelled to Australia before. In the circumstances, the Tribunal makes no findings with respect to the visa applicant’s previous compliance with Australian immigration conditions.

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. On the basis of the documentary evidence before it, the Tribunal is satisfied that the visa applicant will comply with the above conditions.

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

16. The Tribunal has weighed the incentives for the visa applicant to remain in Australia after the proposed stay and those factors that would act as an incentive for him to return to India.

17. Firstly, the Tribunal has considered the expressed reasons for the visit, which present as genuine and reasonable. The visa applicant wishes to visit his sister and her family in Australia.  

18. Secondly, on the evidence before it, the Tribunal is satisfied that there are significant incentives for the visa applicant to return to India at the conclusion of his visit to Australia. As noted above, the applicant has provided comprehensive submissions relating to his life in India (to both the Department and the Tribunal), including in relation to his ongoing employment there, his financial situation and his family in India.

    Findings

19. The Tribunal has considered the documentary evidence submitted with the application and the significant amount of additional documentary evidence that has been submitted to the Tribunal.

20. After considering all the evidence before it, on balance the Tribunal considers that factors such as the presence of the visa applicant’s wife and child, his parents, siblings and extended family in India, his well-established life there, his ongoing employment ties and his better than average economic status, form stronger incentives for him to return to India than the incentive for him to remain in Australia.

21. The Tribunal accepts that the visa applicant has a genuine intent to stay temporarily in Australia to visit his sister who lives here. The Tribunal accepts that the visa applicant intends to return to India within the specified timeframe.

22. 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

23. 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.

    Scott Clarey
    Member