Singh (Migration)

[2022] AATA 1046

Singh (Migration) [2022] AATA 1046 (14 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Shamsher Singh

VISA APPLICANT:  Mr Bachitter Singh

CASE NUMBER:  2004007

HOME AFFAIRS REFERENCE(S):          BCC2020/414012

MEMBER:Naomi Schmitz

DATE:14 January 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 14 January 2022 at 12:11pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visa) – Tourist stream – not satisfied that visa applicant genuinely intends to stay temporarily in Australia – family links to Australia – economic recession in India –economic incentives for him to remain in Australia – decision under review affirmed

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 20 February 2020 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 12 February 2020. 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 visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.     

5. The review applicant appeared before the Tribunal on 14 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence from Punjab, India. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the visa applicant who is currently living in India and only able to provide evidence ‘virtually’. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams. No concerns were expressed by the review applicant or visa applicant about the hearing being conducted in this manner, nor was there any indication that the review applicant or visa applicant had any difficulty in understanding or responding to the questions being put during the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. After this matter was constituted to the Tribunal Member on 3 December 2021, the Tribunal wrote to the review applicant and requested updated information and records to be provided by 7 December 2021 including; a copy of the visa applicant’s passport ensuring that all passport country stamps are visible; an itemised list of all the countries the visa applicant has travelled to, if any, including the arrival and departure dates; evidence of the visa applicant’s current employment, if any, such as evidence of recent pay slips, taxation returns or bank statements identifying the relevant pay deposits/transactions; evidence of ownership of property, for example a certificate of title or rates notice and approximate value of property; if the visa applicant is currently leasing property, evidence of the duration of the lease, such as a lease contract; any updated information and records about the visa applicant’s assets and financial situation such as money in bank accounts, identifying the quantum in the financial statement; and any other information relevant to the visa applicant’s activities or commitments or relationships in his home, including family, such as a marriage certificate and the birth certificate(s) of the visa applicant’s child/children.

9. In response the review applicant provided various documents including: the visa applicant’s passport; a statement of net worth by Vishal Sharma & Company; a jewellery certificate of valuation; an agriculture income certificate; the birth certificates of the visa applicant’s two children aged six and nine years; a bank statement dated 6 December 2021 with a closing balance of 116,894.20INR equivalent to $2,175.00AUD; a marriage certificate; a lease agreement; and a valuation certificates from Vicky Sandu Architect and Associates.  

10. During the hearing the Tribunal Member expressed concern regarding how the visa applicant would support himself during his stay in Australia. In the hearing the review applicant gave evidence of being prepared to financially support the visa applicant. After the hearing, on 14 December 2021, the Tribunal wrote to the review applicant requesting: the review applicant’s Australian tax return for the financial year ending 2020; the review applicant’s latest bank statement, showing current funds available; and evidence relating to $85,000 of savings alleged during the hearing. In response on 17 December 2021, the review applicant provided various Commonwealth Bank of Australia account statements totalling $85,597.04, his 2020 taxation return and superannuation documents.

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.

12. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221.

13. The visa applicant requested a visitor visa for up to three months, with a planned arrival date of 16 March 2020 and a departure date of 31 March 2020.

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. In the present case, the visa applicant has not previously travelled to Australia. Consequently, there is no demonstrated compliance or non-compliance with previous visa conditions upon which the Tribunal can use to assess whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

17. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201 given he has applied for a visitor visa for the purposes of visiting family and the short duration of the visit. The Tribunal accepts that the visa applicant has some small savings. The review applicant provided various financial documents referred to in paragraph [10]. The Tribunal accepts that the visa applicant will be accommodated and financially supported by the review during his stay in Australia.

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

19. Firstly, the Tribunal has considered the purpose of the visit. The visa applicant gave evidence that the purpose of his visit was to visit his brother, his brother’s wife and young daughter. He also planned on visiting his cousin and his cousin’s family who also reside in Melbourne. The visa applicant claimed he planned on staying one or two months. He stated he and his wife originally planned to visit Australia together, leaving their two sons behind in India, but that her visitor visa was refused and that she had not sought review of the decision. He claimed she would not accompany him on any future travel due to her being a teacher and their sons being enrolled at school. The review applicant gave consistent evidence stating the purpose of the visa applicant’s travel was to visit him and his family and that he had not seen his brother since he returned to India in 2019 for a wedding. He similarly claimed that the visa applicant planned on staying one or two months and that he would travel alone, due to his wife having to care for the visa applicant’s two children. These are valid reasons to apply for a visitor visa to Australia.

20. Secondly, the Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside India. The visa applicant stated he has not undertaken any travel. Consequently, there is no record against which any weight can be given as to whether the visa applicant has complied with conditions on previously held visas.

21. The Tribunal asked the visa applicant what incentives he had to return to India. The visa applicant is a self-employed agriculturalist. He gave evidence of operating a wheat and rice farm which he claimed generates approximately 851,000INR per annum equivalent to 15,800AUD. He claimed his brother-in-law (his wife’s brother) would look after the farm during in his absence. He also stated he has family, including his wife, two sons, mother, a sister and extended family including four uncles and his in-laws. His stated his wife has been a contract teacher since 2008 and that his two children are currently enrolled at school. He stated that despite promises that his wife’s employment would be made permanent, she has always been on contract. The visa applicant claimed to own a motor vehicle and a house and reside with his mother.

22. The review applicant claimed his brother would return as he owns a house, is a part owner of farming land which he inherited (the review applicant and their mother also being part owners), leases land and that his wife is a teacher, that the visa applicant has a large family network including a wife, two children, mother, sister, and his wife’s family including four siblings and father who all reside in Punjab.

23. The Tribunal has also taken into account the situation of a visa applicant’s home country, India, which may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report, which discusses India’s economy, health care system and the impact the COVID-19 pandemic has had on India. The report details that in 2019 the Indian economy suffered a slowdown with there being a lack of growth in wages and jobs. India’s economy has also been impacted sharply by the COVID-19 pandemic resulting in it entering into its first ever technical recession in the second quarter of the financial year of 2020 and 2021. The World Bank classifies India as a lower middle-income country. India’s health system faces a number of challenges, including a shortage of infrastructure such as personal protective equipment and testing regime and a lack of skilled health sector workers. The COVID-19 pandemic has placed strain on India’s health system, with the number of confirmed cases exceeding 9.2 million and with there being over 449,538 deaths. As of September 2021, globally India has the second highest number of cases and deaths from COVID-19. The Tribunal member contrasted India’s economic recession, health care system and COVID-19 situation with Australia’s much stronger economy, better health care system and less COVID-19 cases and deaths and asked in light of these differences, why would this not be a disincentive to return.[1]

    [1] Department of Foreign Affairs and Trade Country Information Report – India dated 10 December 2019 and India COVID-19 Situation Indian Government Response to COVID-19 – Telangana and the COVID-19 crisis

24. In response, the visa applicant stated that his family is very safe and that Punjab is safe and clean. The review applicant denied that COVID-19 would act as a disincentive to return, stating that the visa applicant applied to travel to Australia prior to the COVID-19 pandemic and was not the basis for him seeking to leave India. Neither the visa applicant or review applicant acknowledged the economic situation in India and were evasive.

25. The visa applicant gave evidence that he did not have any well-founded fear of any form of persecution in India due to his race, religion, nationality, membership of a particular social group or political opinion. The visa applicant is Sikh which is the dominant religion in the state of Punjab which DFAT assess as generally facing a low level of official and societal discrimination and violence. The review applicant gave evidence of the same. The Tribunal accepts the visa applicant and review applicant’s evidence. The review applicant also gave evidence of returning to India since becoming an Australian citizen and has no security concerns. The Tribunal notes the visa applicant obtained his Australian citizenship through a 187 skilled migration visa and not a protection visa.

26. The Tribunal has considered all matters carefully. The visa applicant has a valid reason to visit Australia to see his brother and cousin and extended family. The visa applicant has not travelled to Australia before or any other country outside of India, and therefore no weight can be placed on prior travel as evidence of an intention of a genuine temporary stay in Australia.

27. The visa applicant was asked by the Tribunal to provide proof of ownership of land such as a certificate of title or rates notice, however produced summaries of assets without producing primary documentation. The Tribunal does not accept the summary of assets and valuation report produced as it is not supported by credible or independent evidence. Accordingly the Tribunal does not accept that the visa applicant owns any property, be it residential or agricultural.

28. The Tribunal has also considered the visa applicant’s claims of being a self-employed agriculturalist. The visa applicant’s claimed income is not supported by credible or independent evidence such as an income tax return or business records. The Tribunal does not regard the agriculture income certificate as credible evidence of income, as it is unclear how the income calculation has been undertaken and what documents it is based on. Accordingly, the Tribunal places no weight on it and is not satisfied that the visa applicant’s alleged employment constitutes a strong economic incentive to return. Furthermore, the visa applicant’s claimed income cannot be considered significant or a strong economic incentive to return after a visit to Australia.

29. The Tribunal is not satisfied that the lease agreement constitutes a strong incentive, given the lease agreement does not stipulate the terms of breach of contract and it would be difficult to legally enforce outside the jurisdiction should the visa applicant fail to return to India. The visa applicant and review applicant’s evidence in relation to the lease agreement was vague and therefore limited weight is placed on it.

30. The Tribunal places limited weight on the visa applicant’s personal savings, as the quantum is small and the money could be easily withdrawn, transferred or accessed remotely from within Australia. The Tribunal places limited weight on the visa applicant’s jewellery as all are portable items, that could easily be bought with him to Australia and the Tribunal is not satisfied that they constitute a strong incentive to return. Similarly, limited weight is placed on the visa applicant owning a motor vehicle and tractor, given these could be easily transferred or sold.

31. The Tribunal accepts that the visa applicant is married and has two children in India. Although the visa applicant has a wife and children and extended family in India, the visa applicant equally has a brother and cousin and their family who reside in Australia. In light of the concerns that the Tribunal has about the visa applicant’s income and employment circumstances in India, the economic recession in India and the visa applicant’s wife being a contract teacher since 2008, who has been unable to secure permanent employment for the past 14 years, the Tribunal places considerable weight on the country information.

32. The Tribunal has considered the offer of support by the review applicant. Nonetheless, having weighed the evidence regarding the visa applicant’s economic and financial situation, the Tribunal is not satisfied that the support offered by the review applicant allays its concerns about the visa applicant having a genuine intention to stay temporarily in Australia. 

33. For the above reasons the Tribunal is not 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 not met.

    DECISION

34. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Naomi Schmitz
    Member