Sidat (Migration)

[2024] AATA 4047

Sidat (Migration) [2024] AATA 4047 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mahmad Suleman Sidat

VISA APPLICANT:  Mr Juned Suleman Sidat

CASE NUMBER:  2311723

HOME AFFAIRS REFERENCE(S):          BCC2023/4258312

MEMBER:Anne Grant

DATE:10 October 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 10 October 2024 at 3:42pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit Australian family member – a family history of compliance with visitor and substantive visa conditions – young family in India provides a much stronger incentive for him to return home – satisfied that the visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 3 August 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 26 July 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 the visa applicant genuinely intended to stay temporarily in Australia.  

5. The review applicant (the sponsor) appeared before the Tribunal on 10 October 2024 to give evidence and present arguments. The visa applicant also gave oral evidence.  The hearing was conducted using the Microsoft Teams application, and the parties gave evidence by video. Both the review applicant and the visa applicant gave their evidence in English.   

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 stated that he seeks the visa for the purposes of visiting his brother in Australia and also general tourism. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

9. I have had the opportunity to speak directly to the visa and review applicants about the visa applicant’s circumstances and intentions.  I have also considered the information provided in support of the application for the visa.  I found the visa applicant and the sponsor to be frank and credible witnesses and I accept their evidence.

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 visa applicant has not previously travelled to Australia.  However he has visited the United Kingdom and completed his masters there, and returned to India after two years. This was prior to his marriage (and the birth of his children). 

12. I also noted from information on the departmental file that several of the visa applicant’s family have visited Australia, some on multiple occasions.  The review applicant/sponsor confirmed that he has previously successfully sponsored his parents, his parents-in-law, his younger sister and an elder sister and her son to visit Australia on separate occasions.  His parents have visited Australia on three occasions.  On every occasion the visa holders complied with their visa conditions and returned to India within the period of their permitted stay. In answer to my question, the sponsor confirmed that he had never been asked to provide a security deposit on any of those previous sponsorships.     

13. The sponsor is an Australian citizen and there is no information before me to suggest that he has ever failed to comply with the conditions of a visa.  The sponsor’s sister also lives in Australia as a permanent resident after being granted a partner visa.  There is no information before me which suggests that any family member has failed to comply with the conditions of their visa at any stage. 

14. I am of the view that a family history of compliance with visitor and substantive visa conditions should be given significant weight.  It supports and reinforces the visa applicant’s evidence that he intends to comply with the conditions of a visa in the same way that his family have done.  He gave evidence that he is aware that if he breached the conditions of a visa, his brother’s capacity to sponsor other family in future might be adversely affected.  He noted that because of that excellent sponsorship record, his brother would not risk sponsoring someone who he thought might breach the terms of a visa.  The sponsor confirmed this was the case.

15. I give the family history of visa compliance and the visa applicant’s previous travel to the United Kingdom substantial weight in support of the visa applicant’s stated intention and likely compliance with the conditions of a visa, including departing within the term of a permitted stay.

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 600.612):

    ·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.

17. The visa applicant confirmed that he has no intention of working or studying in Australia, or of applying for a substantive visa of any kind when he is in Australia.  He is currently studying a PhD at P P Savani University and his current tutoring business is self managed so he can take a break of about a month without any difficulty.  He intends to visit his brother and his brother’s family and also his sister and her family and then return to his own family and work in India.    

18. The Tribunal has also considered all other relevant matters (cl 600.211(c)). At the time of application, the visa applicant had regular and full-time employment as a teaching assistant and had been in the same job since 2017.  I had noted that his bank statement showed multiple ‘non-salary’ deposits over the entire period of that statement (20 July 2022 – 19 July 2023), and also numerous transfers out to a share trading brokerage.  The visa applicant confirmed that he has earned income from private tutoring for several years in addition to his former employment - which has meant that he has always earned a very good income.  He recently resigned from his employment as a teachers’ assistant at the school, and now focusses on his tutoring business which is lucrative.  He also earns some income from farming the land that he owns.  He described the crops he farms, (including sugar cane and mangoes) which he manages with a cousin.   The visa applicant confirmed that he also has shares and noted that he has a good income and is financially independent in India.  He has no debts.

19. The visa applicant has a wife and three young children (aged nearly two, six and eight).  He gave evidence that his wife does not work and will have the daily practical support of his parents and other family who live nearby when he is away.  I consider that the visa applicant’s young family provides him with a strong incentive to return to India at the end of a permitted stay.  Although the visa applicant also has some family in Australia, I consider that his young family in India provides a much stronger incentive for him to return home after a short visit than his brother and sister are to remain in Australia. 

20. I am also satisfied that the visa applicant has substantial assets and investments in India worth the equivalent of more than AUD$800,000; including his home, three parcels of land (some of which is yielding additional income from crops) and financial investments.  The delegate referred only to what was described as a minimal bank balance, but appears not to have had regard to the extensive financial information provided which suggests that the visa applicant regularly invests some of his income rather than maintaining a large bank balance. I consider that the information and evidence before me establishes that the visa applicant is financially secure in India and has business and property commitments which require his ongoing presence in order to generate income for his family’s support. 

21. I am also satisfied that the review applicant/sponsor has reliable employment and substantial personal resources.  He is able to provide support to the visa applicant during his visit. 

22. I asked why the visa applicant had not mentioned visiting his other sister who lives in Australia when describing his reasons for visiting.  The visa applicant said that he assumed it would just be ‘a given’ that he will also visit her whilst in Australia, and apologised for not mentioning that intention. He confirmed that he will also visit his sister during his visit if the visa is granted.

23. Having had regard to the relevant factors and the information and evidence before me as discussed above, I am satisfied that there are strong incentives for the visa applicant to return to India after a short visit and that he intends to visit Australia for the purposes of visiting his family for a temporary period of around one month.   

24. I am satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and find that the requirements of cl 600.211 are met.

    DECISION

25. 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