Singh (Migration)

[2020] AATA 4007

Singh (Migration) [2020] AATA 4007 (25 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Gurmit Singh

VISA APPLICANT:  Mr Gurdeep Singh

CASE NUMBER:  1832301

HOME AFFAIRS REFERENCE(S):          BCC2018/3569574

MEMBER:Ian Garnham

DATE:25 August 2020

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 25 August 2020 at 10:35pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – immigration and travel history – intention to comply with visa conditions – incentives to return to India – significant family members in home country – credible witnesses – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211; Schedule 8, Conditions 8101, 8201, 8503, 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 Immigration on 23 October 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 September 2018. 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 (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 they were not satisfied that the visa applicant has demonstrated sufficient incentive to return to India.

5. The review applicant did not respond to the hearing invitation; but arrived at the hearing at the appointed time and the tribunal proceeded with the hearing after an interpreter was appointed to assist the review applicant.  

6. The 39yo review applicant appeared before the tribunal on 5 March 2020 to give evidence and present arguments. The tribunal also received oral evidence from Mr Gurdeep Singh (the offshore visa applicant and a brother of the review applicant), and Mrs Goldjit Kaur (who is the wife of the review applicant).  

7. The tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8. The review applicant was represented in relation to the review by his registered migration agent.  The representative did not attend the tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

    The purpose:

11. In the visa application, the visa applicant seeks the visa for the purposes of family visit.  In the application they applied for a stay of 3 months.  At the hearing the visa applicant said that he is now only seeking to come for a shorter period; 15 days to see his brother and his achievements in Australia.  

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

    cl.600.211(a):

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.

14. The visa applicant has not previously come to Australia.

15. At the hearing the review applicant provided evidence that demonstrates the visa applicant  was a student in Cyprus between 2005 -2010 and that he has travelled to Thailand, United Arab Emirates, Singapore and Malaysia.  The visa applicant confirmed that he had visited these countries.  Most recently he visited Thailand for 3 days when the review applicant was returning to Australia in February 2020.

16. The review applicant first came to Australia in September 2008 on a subclass 573 Higher Education Sector visa.  In March 2011 he was granted a subclass 572 Vocational Education and Training Sector visa and in May 2012 he was granted a further subclass 573 Higher Education Sector visa.  In October 2014 he was granted a subclass 485 Temporary Graduate visa and in June 2016 he was granted a Skilled Independent (Permanent) visa.  The review applicant became an Australia citizen in September 2018.  He returns to India annually.

17. At the hearing the review applicant said that his mother and a different older brother have previously come to Australia to visit him on two occasions.

18. The review applicant’s mother and 43yo brother’s Movements Details show that they first came to Australia on 12/01/2016 on a subclass 600 Tourist visas that ceased to have effect on 12/04/2016, they departed Australia on 07/04/2016.  The review applicant’s mother and brother again came to Australia on 01/11/2018 on subclass 600 Tourist visas that ceased to have effect on 01/02/2019.  They then departed Australia on 21/01/2019.

19. I acknowledge that members of the applicants’ family have previously travelled to Australia and have done so compliantly.   

    cl.600.211(b):

20. 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.

21. The delegate was concerned that the visa applicant; …provided minimal evidence of the scope or scale of the business as well as evidence to show that it is ongoing or profitable enough to act as incentive to return to India. 

22. At the hearing the review applicant said that the visa applicant is a primary producer, the main crops he produces are wheat and rice.  Numerous untranslated sales receipts (dated form 2015 to January 2020) for produce[1] and a translated Certificate of Income, which is hand dated 4/7/16[2] were provided to the tribunal at the hearing.

    [1] At FF: 26-38 (AAT)

    [2] At FF: 39-40 (AAT)

23. At the hearing the review applicant said the visa applicant has significant family members who will remain in India.  The review applicant lives with his mother and brother as well as his wife and a 4yo child.  In addition, the visa applicant’s wife is pregnant and due to deliver in August.

24. The visa applicant said that his in-laws and servants would care for his farm and family members during his absence while visiting Australia.  As the application is made for the visa applicant to travel alone; he said that he is now only seeking to come to Australia for 15 days. 

    cl.600.211(c):

25. The Tribunal has also considered all other relevant matters.

26. The visa applicant has made numerous applications to come to Australia.  In 2011 he made two Student visa applications and in 2016 two tourist visa applications were made.  All of these visa applications were refused; and the applicants did not seek review of these decisions.

27. When the Tourist visa applications were made the visa applicant in 2016 he was seeking to visit his brother in Australia with his mother and older brother to celebrate the review applicant moving into a new home.  But when the visa applicant’s visa applications were refused he said he thought something may have been wrong with the applications.  This is why he had reapplied and were seeking review by the tribunal.

28. I found the applicants and witness to be credible witnesses and in an unsophisticated manner they have now provided significant evidence to demonstrate the visa applicant’s incentives to return to India after visiting his brother in Australia.  The reasons that they provided for making the application and seeking review of the refusal decision are understandable and consistent with the visa applicant seeking to visit on a temporary basis.       

29. 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.

30. 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

31. 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.

    Ian Garnham
    Member