Shetty (Migration)

[2023] AATA 3912

Shetty (Migration) [2023] AATA 3912 (14 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Somadheera Shetty

VISA APPLICANT:  Mr Indhraneel Kumar Shetty

CASE NUMBER:  2215907

HOME AFFAIRS REFERENCE(S):          BCC2022/4364379

MEMBER:Stephen Witts

DATE:14 November 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 14 November 2023 at 12:17pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to return or remain – joint ownership of house and land, work and previous compliant travel to other countries – review applicant and family only relatives in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 October 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 18 October 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 was not satisfied that the applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 14 November to 2023 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant, the review applicant’s brother, and from Mr Kumar Bandi, the review applicant’s spouse.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting Australia. This This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

10. 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)).

11. The Tribunal finds that there is no evidence before it of any substantive visa breach by either applicant.

12. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

13. The Tribunal notes that it has been provided with a copy of the delegate’s decision record dated 28 October 2022 by the applicants. In this decision it was asserted by the delegate that it assessed whether the applicant genuinely intends to stay temporarily in Australia taking into account, amongst other things, whether the visa applicant has sufficiently strong commitments in his home country of India which would serve as an incentive for him to return. It was noted by the delegate’s applicant stated that he is employed with an employer since July 2022 but has not provided other evidence including financial evidence.

14. The Tribunal has considered other material provided including payslips and bank statements for the visa applicant, an employment offer letter dated 30 June 2022 for the below mentioned job, and some property material held in India.

15. The Tribunal also notes that further material was provided on 1 November 2023. Included was a letter from an employer dated 29 June 2023 stating that the visa applicant is working with a company, LTIMindtree Ltd, based in his home country, in data engineering, and has been working there since 7 April 2022. Included with this was work payslips for this role and tax information for the visa applicant. Details of a car loan for the visa applicant was also provided.

16. At the hearing the Tribunal had a discussion with the parties regarding the application.

17. The visa applicant stated that he has never visited Australia and nor has he made any previous visa applications. He stated that he has visited various other countries including Thailand, Vietnam, and the UAE, and that he visited the United Kingdom in 2022 on a visitor visa to visit his cousins and returned home to India.

18. He stated that it was his intention if successful in receiving a visitor visa to travel to Australia with his mother, who was given a visitor visa which is current until 2025, and then return to his life back in India. He stated that his sister here in Australia is his only sibling and that he is a single man. He provided evidence regarding his job in India as a data engineer where he has worked for a few years.

19. He provided evidence that he is the joint owner of the home that he and his mother live in and that there is also land owned under his mother’s name.

20. The review applicant stated that she married in 2017 and came to Australia in 2018 as a visitor to see her husband who is an Australian citizen who at that time was living in Australia and that she returned to her home country during the currency of that visitor visa. She stated that she then returned to Australia on a 309 spousal visa and that she and her husband now have a son who is two years old. She stated that she has her mother and brother back in India but no other immediate family and that she also has grandparents and uncles in her home country. She stated that her husband had his brother and family in Australia for some years but that now they have returned to India to live. She stated that she made the original application because she wanted her brother to visit Australia with her mother and that he would be a genuine temporary visitor and that he does have an incentive to return to his home country.

21. She stated that she did not provide enough evidence in the original application regarding any incentives that her brother might have to return to India and that that was her perception as to the reason why it had been rejected.

22. The review applicant’s husband stated that he first came to Australia in 2009 on a student visa and that he achieved permanent residency in 2016 and thereafter married his wife.

23. The Tribunal has considered this evidence carefully noting that it is the case that the visa applicant’s only sibling lives in Australia and that in other circumstances he may have an incentive to remain in Australia. However, the Tribunal also notes that the applicant does have a professional job in his home country and has provided credible evidence that he does have a genuine intention to return to it, and that he wishes to travel with his mother to Australia to visit the extended family. The Tribunal is also mindful that the visa applicant is a single man but has accepted the evidence of the parties that he does genuinely intend to visit Australia temporarily. The Tribunal also notes the evidence provided regarding part ownership of a house and land back in his home country and also notes that the applicant has visited a comparable country such as the United Kingdom which has a similar beneficial immigration profile and that he did observe the conditions of his visit to that country.

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

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.

    Stephen Witts
    Member