Singh (Migration)

[2024] AATA 2103

Singh (Migration) [2024] AATA 2103 (13 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jayden Singh

VISA APPLICANT:  Mr Gurpreet Singh Thukral

CASE NUMBER:  2305270

HOME AFFAIRS REFERENCE:               BCC2023/1884758

MEMBER:Nicole Burns

DATE:13 May 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 13 May 2024 at 11:11am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – visiting brothers – genuine temporary entrant and compliance with conditions – applicant living and working in another country – review applicant and another brother in Australia, and parents’ contributory parent visa application in progress – applicant’s previous period as unlawful non-citizen – plan to apply for skilled visa but occupation removed from list – depression and urged to stay in Australia by review applicant – spontaneous, detailed and credible oral evidence – intention not to jeopardise parents’ visa application, or future visits by applicant or other relatives – better standard of living in other country than in home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, Schedule 8, condition 8531

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 5 April 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 22 March 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. This was the basis the delegate refused to grant the visa.

4. The review applicant is the visa applicant’s brother.  He appeared before the Tribunal on 8 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via the telephone from Singapore, where he presently resides.  

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

   Background

6. By way of context and background, the Tribunal notes the following about the applicants’ circumstances, as indicated in their written and oral evidence.

7. The visa applicant is a 34-year-old male from India, presently living and working in Singapore.  He is separated from his wife, who remains in India.  His two brothers are Australian citizens who live and work together in Melbourne.  The review applicant has three children and the other brother in Australia has two children.  Their parents are retired and spend their time between India (Chandigarh) and Melbourne and receive income from rental properties in India and Australia.  Three years ago the applicants’ parents applied to migrate permanently here via the contributory parent pathway, which is pending.

   CLAIMS AND EVIDENCE

8. In the application form the visa applicant states he wishes to visit Australia from 1 to 15 May 2023 to attend his niece’s birthday.  In support of the visa application he provided documents evidencing his employment and financial situation in India (where he resided at the time), including: bank statements, a net worth statement, tax information, and a letter from his purported employer (Shanti Jewellers).  

9. The delegate was not satisfied the visa applicant met cl 600.211, noting in their decision record concerns about the visa applicant’s financial situation and employment (they did not elaborate).

10. On review the review applicant advised the Tribunal in writing of some changes to his brother’s circumstances. Specifically that he had moved to Singapore in 2023 to study hospitality and tourism management.  He provided copies of the visa applicant’s Singapore work permit and educational documents, and a copy of his Singaporean bank account statement showing some savings. 

11. At hearing the review applicant gave evidence about the purpose of the visit, his brother’s current circumstances in Singapore, and his own circumstances in Australia, as well as of other family members.  His evidence was reasonably detailed, spontaneous and corroborated by the visa applicant’s oral evidence about these and related matters. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. In the present case, the visa applicant seeks the visa for the purposes of visiting his brothers and their families in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

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. Departmental records indicate the last substantive visa held by the visa applicant was a student visa (Subclass 572) granted on 24 February 2009, valid to 15 March 2011.  The conditions attached to that visa related to work limitations (8105), requirements to continue studying (8202) and health insurance (8501).  There is nothing before the Tribunal to indicate the visa applicant did not abide by those visa conditions.

16. Records also indicate the visa applicant was granted a bridging visa on 11 September 2017 and departed Australia on 6 October 2017 (the day his bridging visa expired).  There were several conditions attached to that bridging visa[1], including not being able to work, in place whilst the visa applicant made arrangements to depart Australia.  There is nothing before the Tribunal to indicate the visa applicant did not abide by those visa conditions.

    [1] 8101, 8401, 8506, 8510, 8511 and 8207.

17. Accordingly the Tribunal is satisfied the visa applicant complied substantially with the conditions of the last substantive visa he held, and his subsequent bridging visa.

18. The Tribunal notes the visa applicant remained in Australia for over six years after his student visa expired before contacting the Department and obtaining a bridging visa to make arrangements to depart the country.  The Tribunal has considered this (and the applicants’ explanations for the visa applicant’s overstay) below.

19. 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.

20. At hearing the visa applicant told the Tribunal he moved to Singapore from India in July 2023 to study an advanced diploma of hospitality and tourism management.  He has completed his studies and presently is undertaking on the job training, at a café called Chai Tea, over a further six months. Once this is complete his employer has offered him further work (of at least two years), wanting him to manage the café.  His employer will continue to organise a visa for him. 

21. Given these commitments the visa applicant said he is only able to visit Australia for a week or two, having to return to complete his work part of his qualifications, which he does not want to jeopardise.  The main reason he wants to visit Australia is to see his brothers and their family members here, as well as two dogs who live with his brothers who were his dogs when he lived in Australia. The Tribunal accepts the visa applicant’s statements in this regard, noting he has provided evidence of his education qualifications and work permit in Singapore. It also accepts he has some savings to cover the cost of the visit, such as airfare, and that he will stay with his brothers.  Given these considerations the Tribunal is satisfied the visa applicant does not intend to work in Australia if his visa is granted.

22. There is no claim nor indication the visa applicant intends to study or train in Australia.

23. With respect to whether or not the visa applicant intends to meet condition 8531, his immigration history casts some doubts about his potential compliance in this regard, as noted.  Specifically given he stayed in Australia for over six years after his student visa had expired and did not contact the Department to regularise his status. 

24. At hearing the review applicant explained the visa applicant completed his studies in Australia, obtaining good grades, in graphic design and print press.  He planned to apply for a skilled visa to work and stay here (as the review applicant and his other brother had done).  However around the time he finished his studies the course was removed from the skilled occupation list and he could not meet the criteria.  The visa applicant became depressed and suicidal which is why the review applicant wanted him to stay: to help support and monitor him.  Eventually the review applicant said he helped support his brother’s return to India in October 2017, and had accompanied him to the see the Department a few weeks prior. 

25. On return to India the visa applicant married and was able to secure some work as a graphic designer and then helping his mother’s import/export business.    

26. The visa applicant told the Tribunal in Australia he became upset and depressed after his course was taken off the skilled occupation list.  He acknowledged he made a big mistake by overstaying but felt overwhelmed.  He said he will not make the same mistake again, emphasising that his life has improved considerably and he is enjoying his work and prospects in Singapore, for the foreseeable future.

27. As discussed at hearing, the visa applicant’s immigration history in this respect raises a concern as to whether he would abide by visa conditions attached to a visitor visa if granted, including not staying beyond the permitted stay.  However the Tribunal accepts based on the applicants’ evidence that there were compelling circumstances that led to the visa applicant overstaying at that time: specifically a serious decline in his mental health at a vulnerable age.  It accepts he became depressed and withdrawn and did not make efforts to change his situation – including his immigration status – due to being depressed.  The Tribunal accepts on the evidence before it that the visa applicant’s situation is different now and that he is committed to returning to Singapore after a brief visit to Australia to finish his qualifications in hospitality management, and has secured employment there, for at least another two years.  The Tribunal considers these constitute significant incentives for the visa applicant to return to Singapore before the end of the permitted stay if the visa is granted.

28. The Tribunal has also considered all other relevant matters (cl 600.211(c)). In doing so the Tribunal has considered other incentives for the visa applicant to return to Singapore before the end of the permitted stay if the visa is granted.

29. As noted the Tribunal accepts the visa applicant’s studies and work commitments in Singapore, and strong prospects for future employment in hospitality management, would act as a significant incentive for him to return there before the end of the permitted stay if the visitor visa is granted.

30. In terms of family ties, the Tribunal notes the presence of the visa applicant’s only siblings – his two brothers (and their families) - in Australia, along with his parents who regularly spend extended periods of time in Australia and plan on migrating here permanently, may act as an incentive for the visa applicant to stay here.  Nonetheless, the Tribunal accepts his evidence about wishing to continue to build his life in Singapore.  He told the Tribunal he lives there with a close friend who works in the same field.  He also noted a better standard of living in Singapore than in India. 

31. The Tribunal accepts these factors would constitute reasonably strong incentives for the visa applicant to return to Singapore, even accepting his brothers, nieces and nephews reside in Australia, and his parents visit often and for extended periods of time. 

32. The review applicant gave evidence about his immigration history and current circumstances.  He said he came to Australia around 18 years ago (in 2006) holding a student visa.  He completed his studies (obtaining a master’s degree) and obtained a permanent visa through being sponsored by an employer.  He, along with his brother, bought a truck company a few years ago, which is doing reasonably well financially.  They live together along with their wives and children in Melbourne.  It appears to the Tribunal that the review applicant has worked hard to establish his life in Australia and there is nothing to indicate he has circumvented the proper migration channels in doing so. It considers he would make sure his brother abided by relevant visa conditions if the visitor visa was granted, so as not to jeopardise future visits by him, or other relatives, including his parents. 

33. Further the Tribunal accepts and gives weight to the review applicant’s evidence that several relatives have visited him over the years, including his uncle, his grandmother, and his parents (regularly). He claims that when visiting his relatives have always abided by relevant visa conditions, including departing before the end of the permitted stay, except for his mother on one occasion, in around 2016 or 2017.  The review applicant explained at that time his mother delayed her return to India – by a matter of days (he was unsure exactly how long) – because of threats she had received from her nephew who had recently returned to India from Australia, was a drug user and who blamed the review applicant and his mother for helping facilitate his return to India.  Given these threats the review applicant said his mother also applied for a protection visa at that time, based on advice from an agent.  However once his mother’s nephew went into rehabilitation in India and the threats stopped, she withdrew her protection visa application and returned to India.  She has visited Australia since holding visitor visas and abided by relevant conditions, including departing before the end of the permitted stay.

34. The Tribunal accepts the review applicant’s evidence in this regard, having found him a credible witness who appeared forthcoming about past issues with his mother’s (and the visa applicant’s) compliance with visa conditions and more broadly their immigration history.  It accepts there were particular circumstances that led to his mother overstaying for a short period of time in 2016 or 2017, but that she has otherwise abided by relevant visa conditions attached to her visitor visas. 

35. The Tribunal notes at hearing (and in his letter to the Department) the visa applicant indicated he is willing to lodge a security bond to ensure his brother will abide by relevant visa conditions if the visa is granted.  The Tribunal has taken into account his willingness to provide a security as further indication that the visa applicant intends to abide by relevant visa conditions.  However, as noted at hearing, as there is no indication that an authorised officer has requested a security in accordance with s 269 of the Act in this case, the Tribunal is unable to request or recommend a security be lodged.  It is satisfied the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, even without the lodgement of a security, for the reasons set out above. 

36. 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

37. 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.

    Nicole Burns
    Member