Singh (Migration)

[2021] AATA 3868

Singh (Migration) [2021] AATA 3868 (5 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Harvinder Paul Singh

VISA APPLICANT:  Mrs Amandeep Kaur

CASE NUMBER:  1932541

HOME AFFAIRS REFERENCE(S):          BCC2019/5302757

MEMBER:Melissa McAdam

DATE:5 October 2021

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 05 October 2021 at 10:31am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to remain or return – brother and his family in Australia, husband, child, extended family and long-term permanent employment in home country – self-funded travel – previous compliant travel by mother, currently remaining in Australia on COVID-19 extension – intention to comply with conditions – intention to sponsor other family members – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 5 November 2019 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 October 2019. 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 following is a summary of the information the visa applicant provided in her visa application:

   a.She is a 38 year old citizen of India. She lives in Jalandhar district in Punjab, India.

   b.She is married with an 8 year old daughter.  Her husband and daughter will remain in India while she visits Australia.

   c.Her brother, the review applicant, lives in Australia and is an Australian citizen.

   d.She wants to visit her brother and his family in Australia and see sights in Australia, for up to three months. 

   e.She has been professionally employed in a food company since 2015.

   f.She will self-fund her travel to Australia and be accommodated by the review applicant while here.

   g.She previously applied for a Visitor visa which was refused.

5. The visa applicant provided copies of the following documents with her visa application:

   -Her Indian passport, showing the name of her spouse.

   -A letter outlining her wish to visit Australia.

   -Her Marriage Certificate.

   -Her daughter’s Birth Certificate.

   -Her bank account statement.

   -Her Employee’s Provident Fund statement.

   -A Statutory Declaration from the review applicant inviting the visa applicant to visit Australia.

   -The review applicant’s Australian passport.

   -The review applicant’s Birth Certificate.

   -A Rates Notice in the review applicant’s name.

   -The review applicant’s payslips.

   -A letter from the visa applicant’s employer confirming that she has permanent employment as an accountant at the company and has been granted four weeks leave to visit her brother in Australia.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because her salary was low and she had not demonstrated strong personal, economic and financial ties in her country as an incentive to return there.

   Information to the Tribunal

   Pre-Hearing Submissions

7. With the review application the review applicant provided the following written materials:

   -A letter from the visa applicant in which she states:

   I am married to Hardeep Singh Kaler, and we haw one daughter, Aishleen Kaur. Both will stay back while I will travel to Australia if the visa is granted.

   I have a permanent fulltime job as an accountant with Dhiman Food's Pvt. Ltd.  And
   my husband works fulltime as well in a finance company.

   I have sufficient funds to purchase the travel ticket. My brother will provide me accommodation and foods with the other basic needs of everyday life.  I have additional funds available as well in my husband account if needed. My husband is supporting my trip fully.

   There is an amount of Rs 41000/ deposited into my husband's account.  This deposit was recently transferred to my husband's account by my father in law Jaswant Singh
   Kaler. This amount is the ‘Hallah' (rent) received every year on our agriculture land which is leased to a farmer.

   I just want to visit Australia to see my brother and his family during the holiday period of Christmas and New Year 2020.

   I assure you that I am genuinely wanting to visit Australia as a tourist.

   -A Statutory Declaration from the review applicant that he has a four bedroom home and will accommodate the visa applicant while she visits Australia.

   -The review applicant’s Australian passport.

   -A Rates Notice in the review applicant’s name.

   -The review applicant’s Birth Certificate.

   -The review applicant’s Pay Slips.

   -The visa applicant’s husband’s bank account statement.

   -The visa applicant and her husband’s joint bank account statement.

   Tribunal Hearing

8. The review applicant appeared before the Tribunal on 23 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The following is a summary of the information provided by the review applicant at the hearing:

   a.The visa applicant still wants to visit Australia as she has not seen the review applicant’s daughters who are four and eight years old. The review applicant and his family are unable to travel to India easily because he and his wife both work and the children are young. 

   b.The visa applicant lives in a joint family household.  She lives there with her husband, daughter, and parents-in-law; and her brother-in-law and his wife and two children.

   c.The review applicant has visited the visa applicant and her husband three times in India.  He also attended their wedding.  The visa applicant has a good relationship with her husband. They have no problems in their marriage.

   d.The visa applicant has no enemies in India. She is not involved in politics or with any political or religious organisations.  She has no problems from any religious or political organisations.

   e.The review applicant has also sponsored his mother to visit Australia. She last came to Australia almost two years ago on a one year Visitor visa.  Due to the COVID 19 pandemic she had to extend her stay in Australia.  When she is able to return to India she will.

   f.The visa applicant will not travel to Australia until she is sure she can return to India. 

   g.The review applicant’s wife has twice sponsored her mother and once her father to visit Australia. They both departed Australia before their visas expired.

   h.The visa applicant works as an accountant in India. The visa applicant will probably only visit for one month because of her job.

   i.She will just come to Australia for a visit then return as her family are in India.  Her daughter is not able to come to Australia because she has school. The visa applicant needs to return to India to continue to look after her child and husband, as well as her properties. Everything she has is in India.

   j.While the visa applicant visits Australia her sister-in-law and mother-in-law will look after her daughter.  There are other young children in the house so the visa applicant can be way for one month.

   k.The review applicant’s father was granted a visitor visa about three years ago but did not travel to Australia because he did not want to.  He is still living in Punjab.

   l.The review applicant would like his father and brother and other family members to visit Australia in the future. He would like them to be able to spend time with his family here.  He understands that if the visa applicant breaches any of her visa condition or overstays in Australia this will cause difficulty for his other family members to obtain future visas to visit.

   m.The visa applicant lives in a comfortable two storey home in India. She has no financial worries. The family own the house and the visa applicant and her husband have their own land and jobs. They have no security concerns.

   n.The visa applicant wants to visit Australia to see how the review applicant and his family are doing and meet them and see Australia. The visa applicant and the review applicant’s wife sister get along really well and regularly chat together. They are friends.

10. The following is a summary of the information provided by the visa applicant at the hearing:

    a.The visa applicant wants to visit Australia to see her brother and his family.  He has been in Australia for many years. She has not yet met his children in person.

    b.If she can get a visa to visit Australia she hopes it can be flexible so she will be able to travel when the pandemic allows her to return to India.  She does not want to be stuck in Australia as she will need to return to her daughter. Her daughter cannot be without her for too long.  She has her family and responsibilities in India.  She would prefer to travel when the conditions have settled sufficiently.

    c.She lives with her husband, daughter, and in-laws in India.  Her mother-in-law cannot walk properly as she is in a wheelchair.  The visa applicant and her sister-in-law help look after her mother-in-law.

    d.She lives in a comfortable two storey house with two living areas, four washrooms and several bedrooms.  It has all the facilities of a good house.

    e.She has a very good relationship with her husband. They have had 13 years of marriage and have an eight year old daughter.  Her husband is very helpful and supportive including with domestic work. 

    f.The visa applicant works as an accountant at a company.  It is a good job and she has had it for seven years.  She is a permanent employee and will be able to return there after her leave to visit to Australia.

    g.She does not have any enemies in India.  She is not involved in politics or religious organisations. She has no religious or political problems. She doesn’t have anything to worry about from anyone.

    h.The visa applicant has travelled within India but not to another country.

    i.Her husband used to work in a bank but now he mainly operates a business selling and buying vehicles, and looking after the family agricultural interests.  She and her husband have no financial problems in India.  Their work continued even during lockdown and actually prospered during this time.

    j.Her family in India is quite well to do. Their business and work are prospering. Her father-in-law is a government employee.  She just wants to come to Australia to see her brother’s family.  There are no financial issues or anything to make her remain in Australia.  She would also like to see her mother who has been in Australia for almost two years.   Her mother has visited Australia four or five times.  She has always returned to India previously.  It is only because of COVID 19 that she had to extend her stay this time. The visa applicant believes her mother will return to India when then pandemic allows.  The family have always complied with their visa conditions.

    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.

12. In the present case, the visa applicant seeks the visa for the purposes of seeing her brother and his family and Australia. These are purposes for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

13. 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)).

14. The visa applicant has not previously held a visa in Australia so there is no evidence of past compliance or non-compliance by her.

15. 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.

16. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The Tribunal accepts that she will have access to sufficient funds to support herself during a short visit to Australia. The Tribunal is satisfied that she does not intend to work while in Australia.

17. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

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

19. The Tribunal accepts that the visa applicant is from Punjab in India. The Tribunal accepts the visa applicant’s husband and young daughter are in India, as well as most of her extended family.  The Tribunal considers that the presence of close family members in India is substantial inducement for the visa applicant to return there.

20. Information from the department’s records confirms that the applicants’ mother has travelled to Australia several times as a visitor and always complied with her visa conditions.  The records show that she was granted a second Visitor visa since her last arrival in Australia as her 2000 stay here coincided with the outbreak of the COVID 19 pandemic.

21. The information before the Tribunal indicates that the review applicant and his mother have good immigration histories in Australia. The Tribunal gives substantial weight to this factor. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to his family and relatives’ immigration compliance in Australia.  The Tribunal considers this motivation for the family to ensure the visa applicant complies with her visa conditions and departs before her Visitor visa expires.

22. The Tribunal notes the review applicant’s wish to sponsor other family members to visit Australia in the future.  The Tribunal considers this further motivation for him to ensure the visa applicant does not breach any of her visa conditions and that she departs Australia before the expiry of her visa. 

23. The Tribunal accepts that the visa applicant has long-term permanent employment in India and that she values her job.  The Tribunal accepts that returning to and maintaining her employment is further motivation for the visa applicant to return to India.

24. The Tribunal accepts that the visa applicant has responsibilities for her household, including the care of her daughter and husband, and also of her mother-in-law.  The Tribunal considers the visa applicant would be motivated to return to India to resume these responsibilities.

25. In the Tribunal’s view the incentives for the visa applicant to return to India outweigh any reasons for her to remain in Australia.  The applicants have provided persuasive information that the visa applicant has a comfortable, secure and fulfilled life in India and that she has no apparent motivation to live outside of India.

26. 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

27. 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.

    Melissa McAdam
    Member