SHARMA (Migration)

[2023] AATA 1242

SHARMA (Migration) [2023] AATA 1242 (11 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr SUDARSHAN SHARMA

VISA APPLICANT:  Mr SANDEEP KUMAR

REPRESENTATIVE:  Mr AMBER GUPTA (MARN: 0533773)

CASE NUMBER:  2210746

HOME AFFAIRS REFERENCE(S):          BCC2022/2100231

MEMBER:Linda Holub

DATE:11 April 2023

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 11 April 2023 at 2:40pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – family in home country – business ownership – review applicant’s Student visa cancelled – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 14 June 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 9 June 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 the delegate not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.

5. The review applicant appeared before the Tribunal on 3 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

6. The review applicant was represented in relation to the review.

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

BACKGROUND

1. The review applicant is the brother of the visa applicant. He was born in 1986. Department records indicate that he first arrived in Australia in March 2009 as a holder of a Vocational Education and Training Sector (subclass 572) visa. In October 2015 he was granted a Partner (subclass 820 and 801) visas. He became an Australian citizen by grant in March 2018.

2. In relation to his migration history, the review applicant stated that when his grandfather passed away, he didn’t attend classes and his Student visa was cancelled in 2010.

10) The visa applicant is an Indian citizen born in 1992 in Sarsa, Haryana, India. He is married and has two sons.

CONSIDERATION OF CLAIMS AND EVIDENCE

11) 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 the present case, the visa applicant seeks the visa for the purposes of meeting his brother and his family for a short period of up to three months to spend quality time together and to meet their newborn baby. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

13) In his visa application, the visa applicant indicated he was intending to travel to Australia with his mother. He would like to come for 3-4 weeks.

14) 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)).

15) Department records indicate that the visa applicant has not travelled to Australia before. The applicant has previously been refused a Visitor visa to enter Australia in 2019 and 2022. The first time he applied to travel his with wife and children and in February 2022 to travel with his mother. His mother’s visa was granted but his was not, and on this occasion, they decided to seek review. His father travelled to Australia in 2018 and stayed for 25 days.

16) 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.

17) The review applicant stated that in 2016 he was divorced from his sponsor. He stayed single for a couple of years. In 2018 he married someone in India and sponsored her for a Partner visa. They have one child who is 13 months old, and they live in a rental property. The review applicant stated that at various times he has been driving taxis, worked as a security guard, in construction, and has also worked as a cleaner. He now drives his own taxi. His wife does not work.

18) The review applicant provided the Tribunal evidence of his Commonwealth bank statement showing a balance of $36,143.26 credit as of 5 June 2022 and payslips for the period from April to June 2022 in his name from Queensland Health where he previously worked as a wardsman. During the hearing the applicant stated that after his return from India he started driving his own taxi as a sole trader for 13Cabs/Yellow Cabs Australia and in post hearing evidence provided statements for November and December 2022 and January and February 2023 showing his monthly income,

19) The review applicant stated that the visa applicant has been running his company since he was 21-years old. When questioned how he started the company, the review applicant explained that he started small, and it has grown. He stated that he teaches English, IT, and Maths. Essentially, the company provides tutoring services. The Tribunal was told that the visa applicant is the company director, but he also does some teaching of IT and English courses and organises staff. He stated that he thinks the company employs about 5 or 6 staff but is not 100% sure.

20) The review applicant stated that the incentives for the visa applicant to return to India after his permitted stay include his wife, family, his children aged six and one. The review applicant explained that the family live together in the cultural way. He stated that their parents live with them, and the visa applicant and his wife look after the parents. He stated that his sister is married and has two children and as is customary, she lives with her husband’s family.

21) The documentation provided in relation to agricultural land and two houses relates to the visa applicant’s father not the visa applicant. The properties are in the village. The do not receive any income from them but he also has two small shops which they get some income from.

22) The visa applicant will pay for his own ticket and will stay with the review applicant. The plan was to bring the mother with him for 3-4 weeks. The review applicant stated that it is very difficult for his mother to travel alone because she unaccustomed to international travel and would struggle with her lack of English language. He explained that her visa has expired so they had to reapply.

23) The visa applicant lives in Pehowa, Haryana, India with his wife and two sons. According to written evidence provided he is self-employed as the director/partner of Top Careers & You since 4 January 2013. The visa applicant provided the Department with evidence of his Axis Bank balance showing his bank balance as at 6 June 2022 and a statement showing is net worth INR 10,94,732.

24) The visa applicant gave evidence that he wants to visit his brother and his family and would like to remain in Australia for one month. He stated that he opened the educational institute in 2013 and learnt from his friend how to go about it. He stated that the institute runs English and computer classes for students from nearby schools. He stated he currently employs six staff. He stated that his wife is a partner in the business, and he is the managing director an also teaches computer classes. His wife is also a computer teacher.

25) In relation to incentives for him to return after his visit, the visa applicant stated that the institute and family are the main incentives. The visa applicant stated that his parents are financially dependent on him so he must return to keep the institute going in order to support his family.

26) Both of the visa and review applicants stated that the visa applicant has not experienced any problems in India as a result of the political/security situation or because of his religion or ethnicity. 

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

FINDINGS

28) Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for up to a month 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 extended family, family in India provide sufficiently strong incentives for him to return to his there at the end of his permitted stay in Australia. The Tribunal did not put any weight on the assets held in the name of the visa applicant’s father as incentives for the visa applicant to return to India after his permitted stay.

29) Although the Tribunal had some concerns that the review applicant had a Student visa cancelled at one stage there are no other concerns evident in the family’s migration history. Having reviewed Departmental records regarding the review applicant’s father’s travel to Australia, I have had regard to the fact that his father was granted a visa for three years and note that he remained onshore for 22 days in March 2018. Although the circumstances of the visa applicant are different to those of his father, I have nevertheless put some positive weight on this factor. 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.

30) 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

31) 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