Singh (Migration)

[2020] AATA 5203

Singh (Migration) [2020] AATA 5203 (26 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Gurpreet  Singh

VISA APPLICANT:  Mr Ranjit Singh

CASE NUMBER:  1807789

DIBP REFERENCE(S):  BCC2017/4827269

MEMBER:Stavros Georgiadis

DATE AND TIME OF

ORAL DECISION AND REASONS:         26 October 2020 at 12:58 pm (SA time)

DATE OF WRITTEN RECORD:                26 November 2020

PLACE OF DECISION:  Adelaide

DECISION: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.

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary stay – previous compliant travel by other family members – visa applicant’s parents, work, savings and social life in home country – no English or other work skills – review applicant’s offer of bond – decision under review remitted

LEGISLATION

Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231; Schedule 8, Conditions 8503, 8531

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 January 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 26 October 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The visa applicant applied for the visa on 17 December 2017. At the time the visa application was lodged class FA contained one subclass, subclass 600 visitor with a number of different streams. The applicant applied for the visa seeking to satisfy the primary criteria in the sponsored family stream. The criteria for a subclass 600 visa are set out in part 600 of schedule 2 to the Migration Regulations 1994. Relevantly to this case they include clause 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 in this case refused to grant the visa on the basis that the visa applicant did not meet clause 600.211 because the delegate considered evidence of strong ties to India to demonstrate that he has the incentive to depart Australia within the validity of the visa was not provided or not sufficiently strong.  Overall, the delegate concluded that the visa applicant did not genuinely intend to stay temporarily in Australia for the purpose for which the visa was granted and refused the visa.

5. The review applicant appeared before the tribunal on 26 October 2020 to give evidence and present arguments.  The tribunal also received oral evidence from the review applicant’s spouse, Ms Sukhwinder Kaur, who was present at the hearing.  The tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 clause 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: firstly, 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; secondly, whether the applicant intends to comply with the conditions to which the subclass 600 visa would be subject; and also any other relevant matter.

8. In the present case the visa applicant seeks the visa for the purposes of visiting his brother and his brother’s family in Australia and to visit parts of Australia which the brother and his family would provide assistance with.  This (visiting a close relative such as a brother), is a purpose for which a visa in the sponsored family stream may be granted: under clause 600.231.

9. In considering whether the 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, as provided for under clause 600.211(a).

10. The accepted oral evidence before the tribunal is that the visa applicant has not travelled previously to Australia or indeed to any other country outside of his home area in India.  He resides in Punjab State, India and although had planned to visit Malaysia in approximately 2016 this did not proceed due to work commitments back at the dairy farm which is managed by the visa applicant together with his father.

11. Accordingly, there is no evidence either way of compliance or non-compliance in respect of prior conditions on a substantive visa or subsequent bridging visa for the purposes of clause 600.211(a).  The tribunal however does note that other family members have previously travelled to Australia including the visa applicant’s parents who have travelled to Australia on two occasions, once in 2010 and once in 2018, the most recent occasion being planned for up to three months but only staying one month in total.

12. There is also evidence before the tribunal that other family members, including the visa applicant’s sister, and the visa applicant’s nephew have previously visited Australia in approximately 2017 and again there is no evidence of any non-compliance with other family members to visa conditions on prior visits. 

13. The tribunal must also consider whether the visa applicant intends to comply with the conditions to which the subclass 600 visa would be subject as provided under clause 600.211(b). The conditions to which a visa in the circumstances of this case would be subject are as follows: condition 8101, must not work in Australia; condition 8201, must not engage in study or training in Australia for more than three months; condition 8503, not entitled to a substantive visa other than a protection visa while remaining in Australia; and condition 8531, must not remain in Australia after the end of the permitted stay.

14. The tribunal accepts the oral evidence provided at the hearing as supported by documentary evidence that the visa applicant has independent financial means resulting from his work in assisting his father to manage the family dairy farm in India which comprises five acres of land approximately, that belongs to the family of the visa applicant.  The evidence is that at times additional land is leased, up to 20 acres, depending on the time of year and as required, in order to manage the business.

15. The tribunal accepts that the visa applicant is fully engaged in assisting on the family farm.  There is also evidence before the tribunal of bank account details in the name of Ranjit Singh, the visa applicant, with Punjab National Bank where the balance as at 19 October 2020 is set out at 10.10 Lac, 10.10 4701.78 in full.  The evidence from the review applicant at the hearing is that this equates to approximately the equivalent of AUD$20,000 which is ample funds for the visa applicant to meet the costs of his proposed stay of up to three months on the initial application but according to the evidence provided at the tribunal, of up to one month on this occasion, and for his successful return to India at the end of the proposed stay.

16. Independent of the visa applicant’s financial means the tribunal accepts that the review applicant and his family would provide assistance to the visa applicant during the proposed visit to Australia.  In this regard the tribunal accepts that the review applicant has his own home in Allenby Gardens which would be provided to the visa applicant to reside in during the full period of his proposed visit and also support by way of food, accommodation, travel and such like expenses during the proposed visit.

17. The evidence provided to the tribunal by the review applicant includes evidence of savings held in a Commonwealth banking account in joint names between the review applicant and his wife, Ms Sukhwinder Kaur.  The tribunal notes a balance of approximately $18,500 as at December 2017 and further evidence of a balance of $26,862 as at 19 October 2020.  Given this span and historical balance, the tribunal accepts the oral evidence provided at the hearing by the review applicant that the current balance is approximately $23,000 in the Commonwealth banking account.

18. The tribunal accepts overall the evidence that the review applicant would be able to provide support by way of accommodation, food, travel and such like expenses for the proposed visit as the sponsored family member being the visa applicant for his stay in Australia.  Accordingly, given this and the financial resources available for the proposed stay independently of the support by the review applicant, the tribunal is satisfied that the visa applicant has financial means to not require him to work in Australia for the proposed visit.

19. The tribunal also places weight on the purpose of the visit; that is, to spend time with his brother’s family and to also explore parts of Australia including potentially Melbourne and Sydney once the COVID-19 arrangements allow that, and other parts of South Australia, as was provided in oral evidence during the hearing.  The tribunal also gives some weight to the evidence provided that the visa applicant has no particular skills or training, has no English, has the financial means as aforementioned, and places weight on the purpose for the visit. 

20. Considering these factors collectively, the tribunal is satisfied therefore, also from the oral evidence, that the review applicant has discussed with his brother the need to comply with conditions of no work and no study for more than three months, that the visa applicant will comply with these conditions and accepts that condition 8101 (must not work in Australia), will be complied with, and also condition 8201 (must not engaged in study or training in Australia for more than three months), will also be complied with noting that the proposed visit is not more than three months in any case.

21. Turning to condition 8503, the tribunal accepts the oral evidence that the visa applicant will have no trouble in returning to his home area in India at the end of the proposed stay. The tribunal places weight on the fact that a number of other family members have been able to travel to Australia and then return to India without problems whatsoever.  This includes the visa applicant’s parents on two separate occasions including a recent occasion in 2018, and the visa applicant’s sister and nephew who previously visited in 2017 and returned without hindrance.  An additional factor is that the review applicant and his wife provided evidence to the tribunal that they travel to India approximately every year, not in 2020 of course due to COVID-19 restrictions, but otherwise approximately every year and have been able to travel to India without hindrance.

22. This suggests, and the tribunal accepts the oral evidence provided, that there is no reason why the visa applicant will not be able to return at the end of the proposed stay to his home area in India given a number of other family members have been able to do this in the past and considering the accepted oral evidence provided that there is no reason for the visa applicant to fear any return to India.  The oral evidence is that there’s no reason for the visa applicant to seek a protection visa in Australia given he has no reason of fear in returning to his home country.  Accordingly, the tribunal accepts that condition 8503 will also be complied with.

23. Finally, considering condition 8531, the tribunal carefully questioned the witnesses at the hearing regarding the visa applicant not remaining in Australia at the end of the permitted stay.  The accepted oral evidence from the review applicant and his wife is that they have discussed the matter with the visa applicant who has indicated no intention to remain in Australia at the end of the permitted stay.  To this end the review applicant is prepared to offer a bond, if a bond be required, in order for the visa applicant to comply with the conditions, although there is no suggestion of this being required by the Department.

24. The tribunal also places weight on the declarations made on the application in respect of compliance with conditions including the intention to not remain in Australia after the end of the permitted stay.  The tribunal places weight on a number of incentives that act as factors for the visa applicant’s return to India at the end of the proposed stay.  Firstly, that his parents reside there, living in the same household all together, for which the oral evidence is the visa applicant has full use of the household and ongoing use after the passing of his parents. The evidence also is that he has a good social life, a good social network with many friends and other family with whom he is close and would seek to return there at the end of the proposed stay.  Further to this he has his work in managing the dairy farm which requires his daily attendance.  During other visits to Australia by his father, for example, additional help was required and hired in order to manage the running of the farm given the daily needs of a dairy farm such as milking cows and the like.

25. The tribunal accepts that these factors act as incentives for the visa applicant’s return at the end of the proposed stay which on this occasion, is up to a month although the initial application was for a period of up to three months.  Weighing these collectively, the tribunal accepts also the factor that the visa applicant and the review applicant do not wish to blemish any immigration record or migration record of non-compliance with conditions in order to not prejudice future visits to Australia.

26. They also stress their compliance as active members of the Sikh Temple in Allenby Gardens of which they are active members.  They wish to maintain good reputations with their local community so will ensure that the visa applicant does not breach any compliance requirements during this proposed visit.  As aforementioned, considering these matters collectively the tribunal is therefore persuaded and accepts that condition 8531 will also be complied with and that regarding an intention in that regard, the visa applicant will not remain in Australia after the end of the permitted stay.

27. The tribunal has considered all relevant matters and 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 therefore, that the requirements of clause 600.211 are met. 

    Decision

28. 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.

    Stavros Georgiadis
    Member