Singh (Migration)

[2024] AATA 842

Singh (Migration) [2024] AATA 842 (9 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Gursharan Singh

VISA APPLICANT:  Mr Harminder Singh Kular

CASE NUMBER:  2304425

HOME AFFAIRS REFERENCE(S):          BCC2023/476922

MEMBER:Margie Bourke

DATE:9 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 09 April 2024 at 11:30am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – family visit – genuine temporary entrant and compliance with conditions – no previous visa or travel to Australia, compliant travel to other countries – married with young child, house, business and community role – other brother’s application for student visa after arriving on visitor visa, and joined by wife and child – similarity to brother’s circumstances – offer of security bond – decision under review affirmed

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

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 11 March 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 28 January 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 the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visitor visa was sought.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, informal, economical and quick. The Tribunal had regard to the circumstances of the review applicant, the nature of the review, and the fact the visa applicant would be giving evidence via telephone or video from overseas. The Tribunal considered the conduct of the hearing by video would allow the review applicant to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The review did not involve an extensive amount of paperwork to be put to the review applicant during the course of the hearing. For all these reasons the Tribunal decided this was an appropriate matter for the review to be conducted by way of video hearing.

6. The review applicant appeared before the Tribunal by video on 3 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who attended the hearing by video. The review applicant had named a witness on the hearing response form, but the witness did not join the hearing or participate in the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The interpreter attended the hearing by video.

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

   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 a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. Cl.600.211(a): – 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.

11. I am satisfied based on the evidence before me, that the visa applicant has never travelled to Australia, and has never been the holder of an Australian visa. There is no evidence before the tribunal therefore of any substantial compliance or substantial non-compliance by the visa applicant with an Australian substantive visa or an Australian bridging visa. I accept the evidence that the visa applicant has previously travelled to Malaysia and Singapore.

12. I give the consideration of previous history of compliance or non-compliance with an Australian substantive or an Australian bridging visa neutral weight in my assessment of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose of the family visit.

13. Cl.600.211(b): – The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. 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.

14. The visa applicant provided evidence that he is married with one child. I accept the visa applicant is married and has a young school-age son. The visa applicant provided evidence that he has been managing his tourism business for seven years. The visa applicant provided financial documents in relation to his financial situation, and I accept that the visa applicant pays income tax in India, that he has been operating his tour and travel business for seven years, and that he has a regular source of income. I am satisfied based on the certificate evaluation of a residential building, that the visa applicant also is the owner of a residential building in Kailpur, in the state of Punjab.

15. The review applicant stated that during the proposed visit, the visa applicant would stay in his home in Cranbourne South and spend time with his family if the visa was granted. The visa applicant stated he planned to visit his brother for less than one month.

16. The visa applicant stated that intends to return to India and has strong ties in India. The visa applicant identified his incentives to return to his home country before the expiration of the visa as including his wife, his mother and his son who all reside together in India, his son attends school in India, he owns his own house, he has been working in his business in India for seven years, and his work is settled and established. The visa applicant stated that his mother resides with him and his family. The visa applicant stated that for all these reasons he has no intention to stay in Australia after the visit. The visa applicant asked the tribunal to accept his trust.

17. I have considered the evidence of the visa applicant that he does not intend to work, study or train in Australia and does not intend to apply for another visa in Australia. I have considered the evidence of the visa applicant that he intends to return to India before the expiration of the visa. I have considered the information and documents provided in support of the visa applicant’s evidence, and I have considered the information and evidence provided by the review applicant.

18. My assessment of whether the visa applicant intends to comply with the conditions to which the visa would be subject is combined with my assessment of the evidence in relation to other relevant matters. My conclusion as to whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose of a family visit is based on my combined assessment of the visa applicant’s intention to comply with the conditions to which the visa would be subject and other relevant matters.

19. Cl.600.211(c): – The Tribunal has also considered all other relevant matters. I am satisfied based on the evidence of the visa applicant and the review applicant that they are brothers. I am further satisfied that the visa applicant and the review applicant have one other brother, Ajit, who currently lives with the review applicant. The review applicant told the tribunal that his brother Ajit, had travelled to Australia on a visitor visa in 2018, and then returned to India.

20. The review applicant told the tribunal that his brother Ajit had returned to Australia on a second visitor visa, invited by the review applicant. The review applicant stated that his brother Ajit was married with a child, and his wife and child remained in India at the time he came to Australia as the holder of the second visitor visa. Whilst in Australia as the holder of a visitor visa, the review applicant stated that Ajit had applied for a student visa which was granted. The review applicant told the tribunal that Ajit’s wife and child have subsequently joined him in Australia. The review applicant and the visa applicant told the tribunal in their evidence that Ajit and his family reside with the review applicant in his home in Cranbourne.

21. The review applicant stated that he had also previously invited his mother to visit him in Australia, and she had travelled twice as the holder of a visitor visa and returned to India before the expiration of the visa on both occasions.

22. The review applicant stated that his brother Ajit had completed a six-month diploma in welding in India, and was a professional welder in India, before coming to Australia as the holder of a visitor visa. The review applicant stated that his brother Ajit liked it in Australia, and this was the reason he applied to stay in Australia and not return to India when he was in Australia as the holder of the second visitor visa. The review applicant stated that Ajit had been able to complete a certificate III and IV, and a diploma in welding in Australia, and was now employed in this field. The review applicant stated he himself was employed as a professional welder in addition to his driving employment.

23. I accept the evidence of the review applicant about the circumstances of Ajit applying for a student visa whilst in Australia as the holder of a visitor visa, and subsequently being joined by his wife and child. I discussed with the review applicant and the visa applicant, that the personal circumstances of Ajit and the visa applicant was similar; at the time of their application for the visitor visa they were both employed in India, they are both married with a child, and they both planned to travel to Australia leaving their wife and child behind in India, at the invitation of the review applicant. The Tribunal discussed with the review applicant and the visa applicant that in circumstances where the review applicant had invited his other brother Ajit to visit him in Australia and his brother Ajit had decided not to return to India before the expiration of the visa, despite having employment and immediate family members in India, gave the tribunal doubts as to whether the visa applicant genuinely intended to stay temporarily in Australia for the purpose of a family visit.

24. The tribunal discussed that it was assessing the personal circumstances of the visa applicant but the immigration history of the visa applicant’s brother Ajit, and the similarity in the visa applicant’s brother’s personal circumstances was a relevant consideration in the Tribunal’s assessment. The Tribunal discussed with the review applicant and the visa applicant, that the visa applicant had indicated that the reasons he provided that he would return to India before the expiration of the visitor visa included his employment / business, and his wife and child. The tribunal discussed that these reasons might carry less weight, in the circumstances where the visa applicant’s brother had chosen not to return to India before the expiration of his visitor visa, when he was also employed and had a wife and child in India.

25. The review applicant stated that the personal circumstances of the visa applicant were different because he was older and more settled in India. The review applicant stated that the visa applicant is 41 years of age, and Ajit is now 37 years of age, but was 31 years of age when he first applied for a visitor visa in 2018. I discussed with the review applicant that I did not consider the age of the visa applicant and his brother as being a distinguishing feature between the two brothers in relation to their genuine intention to stay temporarily in Australia.

26. The review applicant stated that the visa applicant had applied for a visitor visa in the Sponsored Family stream. He stated this was relevant because the review applicant could lodge a security bond if required to guarantee that his brother would comply with the conditions of the visitor visa and would return to India before the expiration of the visa. The review applicant told the tribunal that he owned his own home (subject to a mortgage) and had purchased a new car last week. The review applicant stated that he would put his home or his car as a security bond, because he believed the visa applicant would comply with all conditions of the visa and would return to India before the expiration of the visa. The review applicant stated that he wanted to accept full responsibility for his brother’s (the visa applicant) visa application and compliance with the visa conditions.

27. I discussed with the visa applicant and the review applicant that this issue was important to the review, and they may wish to provide further information to the Tribunal. I discussed with the review applicant and the visa applicant that the information they provided may be factors distinguishing the visa applicant’s personal circumstances from his brother Ajit’s circumstances, or any other relevant information or evidence in relation to why the visa applicant genuinely intended to stay only temporarily in Australia and to return to India before the expiration of visa. The tribunal granted the review applicant a short period of time until 8 April 2024, with the opportunity to request an extension of that time, to provide further information in support of the application for review.

28. The review applicant provided post hearing submissions by the due date, including a statement from the review applicant, and an affidavit of the visa applicant. The review applicant also provided a letter with translation confirming the visa applicant is the appointed president of the village Kailpur of the Bharti Kissan Union dated 16 September 2023, a letter confirming the visa applicant’s appointment as vice president of the Bharti Kissan Union for the block Mullanpur Dakha district dated 4 April 2024, a translation of a newspaper article with photograph in relation to the visa applicant’s appointment as the village union president, and a copy of his union identity card. The review applicant did not request an extension of time to provide further information.

29. The Tribunal is satisfied that the visa applicant is the president of the Bharti Kissan union for the village Kailpur since 16 September 2023, and has been recently appointed as vice president for a block area for the Bharti Kissan union.

30. The Tribunal has considered the statement of the review applicant and the affidavit of the visa applicant, which were provided after the hearing. I am satisfied that the visa applicant’s son is studying year seven at school. I am satisfied that the visa applicant is involved in the local union and has been appointed as the president of the union in the village and recently been appointed as a block vice president. I satisfied the visa applicant has an ongoing tour and travel business which he has operated since 2016.

31. I have given careful consideration to the submission of the review applicant that his brother Ajit came to Australia as the holder of a visitor visa, tourist stream, and was invited by the review applicant but not sponsored by the review applicant. I accept that as the review applicant has sponsored his brother the visa applicant in this review, the review applicant considers he is taking more responsibility for the visa applicant, and is willing to provide a security bond in relation to the visa applicant complying with the conditions of the visa. I accept an indication of willingness to provide a security bond is usually an indication that a person believes the visitor visa applicant will comply with the conditions of the visa. However the security bond is not a guarantee of compliance with the visitor visa conditions.

32. Whilst I accept that the review applicant is willing to provide a bond if asked by the Department, this does not alleviate the concerns of the tribunal in relation to assessment of the genuine intention of the visa applicant to stay temporarily in Australia for the purpose for which the visa is granted. The review applicant has previously invited his brother Ajit, to travel to Australia as the holder of a visitor visa. That brother Ajit did not comply with the terms of the visitor visa, and did not return to India before the expiration of the second visitor visa. That brother, Ajit, resides with the review applicant and has subsequently been joined by his wife and child. The personal circumstances of the brother Ajit when he applied for the second visitor visa, and when he did not stay temporarily in Australia for the purpose for which the visitor visa was granted, included that had been employed in India, and when he travelled to Australia at the invitation of his brother, the review applicant, his wife and child initially remained in India.

33. I am concerned that the review applicant and the visa applicant consider the visitor visa can be a conduit for a migration pathway. I am unable to accept that in the circumstances of this review, the fact the visa applicant would travel without his wife and child can be considered a significant incentive for the visa applicant to return to India, given that his brother Ajit did not return to India but chose to remain in Australia and sponsored his wife and child to join him at a later date. I am unable to accept the fact that in the circumstances of this review, the visa applicant genuinely intends to return to India because of his employment / business. I consider it is relevant that his brother Ajit had employment in India when he came to Australia as the holder of a visitor visa, and both his brothers have obtained employment in Australia.

34. I have taken into account the visa applicant has commitments in his home country, including his ongoing business, his wife and child, his mother and his commitment to the Bharti Kissan union. I have assessed the review applicant’s sponsorship of the visa applicant, and his willingness to provide a security bond.

35. However overall my assessment of the evidence of the other relevant matters is that the situations and personal circumstances of the visa applicant and his brother Ajit are too similar, and it indicates that the visa applicant may not genuinely intend to stay temporarily in Australia the purpose of a family visit.  I have carefully considered the written and oral evidence of the visa applicant and the review applicant, and I am not satisfied that the visa applicant intends to comply with the conditions to which the visa would be subject.

1. Conclusions: – I have considered the personal circumstances of the visa applicant, and I accept that he owns his house, is married with a child, has a steady and established income from the business he has managed for seven years, has an appointed role in the village and district Bharti Kissan union and provides support and care for his mother. I have considered the visa applicant is sponsored by his brother, the review applicant who has offered to provide a security bond. I have balanced this information with the evidence provided by the review applicant that his other brother Ajit was also invited to Australia by the review applicant, and that his other brother Ajit came to Australia as the holder of a visitor visa, and remained in Australia because he liked it here and liked the opportunities in Australia. I give weight to the fact that the circumstances of the visa applicant and his other brother Ajit are similar in that they are both married with a child, both had employment in India, and both were invited by the review applicant to travel to Australia.

2. I have considered the oral and written evidence before the Tribunal. I note that the Tribunal regularly gives weight to the previous good migration history of a visa applicant, or members of a visa applicant or review applicant’s family and their previous compliance with the conditions of previous visitor visas. Conversely, in this situation, where the visa applicant’s brother did not return to India before the expiration of his visitor visa, and chose to remain in Australia is a relevant factor to be taken into account in assessing the genuine intentions of the visa applicant. My analysis of the evidence of the visa applicant’s intention to comply with the conditions to which the visa would be subject, when assessed in conjunction with the other relevant evidence, is that the evidence indicates the visa applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa would be granted.

3. I am not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of the family visit.

4. 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

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

   Margie Bourke
   Member