SINGH (Migration)

[2020] AATA 3420

SINGH (Migration) [2020] AATA 3420 (2 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Gurbakhshsis SINGH

VISA APPLICANT:  Mr Gurpreet SINGH

CASE NUMBER:  1826113

HOME AFFAIRS REFERENCE:               BCC2018/2586438

MEMBER:Rosa Gagliardi

DATE:2 July 2020

PLACE OF DECISION:  Australian Capital Territory

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 02 July 2020 at 3:50pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) (Class FA) – Tourist stream – genuine temporary entrant – applicant’s previous travel to United Kingdom – Sponsor’s history of sponsoring visa compliant relatives – applicant wife’s family ties in India – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 Immigration on 17 July 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 10 July 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 Tourist 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.

5. The review applicant, Mr Gurbakhshsis Singh, appeared before the Tribunal by phone on

   
   

   1 July 2020 to give evidence and present arguments; as did the applicant overseas.

6. The review applicants were represented in relation to the review by their registered migration agent.

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

   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 visiting his brother, the sponsor and his family.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

   Background

10. The applicant is 34 years of age and married with a 4-year-old child.  They live in the Punjab.  The sponsor stated at hearing that initially he had included the applicant’s wife and child in the application for review but that now he wanted to proceed with the applicant’s application only.  If his wife and child could visit Australia it was his aim that his family and that of the sponsor could be reunited.  They had hoped to reunite at Christmas in 2020 when the sponsor would have annual leave.

11. The sponsor has provided probative evidence that his daughter has some slight disabilities and that when he had initially lodged the application he had wanted the applicant and his family to visit to provide support with the shock of the situation they had found themselves in. His daughter required surgery and would continue to do so.  Having family members from India to support the sponsor currently as they await news of further surgery, it was argued, would be of benefit.

12. The sponsor was convincing in his arguments that his brother simply wanted to see the sponsor and his family; to undertake some tourist activities and then return to his family and life in India.

    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 (cl.600.211(a)).

14. The sponsor came to Australia on a student visa and then gained permanent residency through the Regional Sponsored Migration Scheme (RSMS).  The Tribunal accepts the sponsor’s statements at hearing that he was compliant with the conditions of his visas in Australia.

15. The sponsor and applicant also have a sister who lives in Brisbane, Queensland, and she also came to Australia on a student visa.  The Tribunal does not have any adverse information regarding her migration history in Australia either.

16. The applicant, a qualified pharmacist, has not travelled to Australia previously but the Tribunal notes that he was in the United Kingdom (UK) in 2010 for just over 5 years prior to his marriage. Similarly, the Tribunal does not have reason to find that the applicant made unmeritorious attempts to remain in the UK permanently or that he fell afoul of Britain’s migration laws. 

17. In addition, the sponsor’s history as someone who has sponsored compliant visitors is strengthened by the fact that he sponsored both his parents, also from India, and more recently his mother who was granted a 12-month Visitor visa but returned to India within 8 to 9 months of the life of that visa. 

18. The Tribunal is satisfied that while the applicant has never visited Australia, he has lived in a similar country for a lengthy period and then returned to India.  It is reasonable to conclude that had it been the applicant’s intention to migrate from India permanently, he would have done so prior to having married and established himself in his home country. 

    cl.600.211(b)

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:

    ·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. The following evidence has been submitted to support the applicant’s contention that he genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted:

    ·Evidence of purchase by the applicant (together with wife and father) of 7 flats by way of student accommodation attached to the main university in the capital of the Punjab, Chandigarh.  The flats provide rental income for the family;

    ·Indian income tax return details for the applicant for the year 2018-2019, demonstrating that the applicant had earned 496,103 Indian Rupee (INR) (equivalent of roughly AUD9503.34 for that year);

    ·Indian income tax return details for the applicant for the year 2019-2020, demonstrating gross total income of 501,719 Indian Rupee (AUD 9609.59);

    ·Bank balance certificate (and associated transactions), dated 10 July 2018, for the applicant detailing he held 308,933 Indian Rupee in savings (AUD5917.92);

    ·Updated transaction records demonstrating a balance of 355,213.74 Indian Rupee (AUD) 6804.47 as at 19 August 2018, and evidence of savings of 502,344.42 Indian Rupee as at 26 June 2020;

    ·Evidence of employment by the sponsor, together with information regarding his personal finances;

    ·Valuations for each of the properties owned by the applicant; and

    ·Evidence of land ownership by the applicant.

21. The Tribunal notes that in a statement to the Department (File: BCC2018/2586438), Folio 17) the applicant claims that overall income from his rental properties was 900,000 Indian Rupee – almost double that set out in his taxation records.  The Tribunal has been unable to identify how the documentation demonstrates, if it does, that the applicant’s earnings are in the vicinity of 900,000 INR.  The Tribunal does note, however, that the applicant does have numerous expenses in that he furnishes the student accommodation and that the applicant is also responsible for the provision of food.  In all, the Tribunal does not consider that the earnings of the applicant are significant, given that he has a wife and child to support and given that his elderly parents also live in his home, and presumably the applicant has some responsibility towards them as well. 

22. In essence, the applicant’s work comprises management of the student accommodation business. 

23. The Tribunal also notes that relatively speaking the applicant’s savings are also not significant, although in a country where the average annual gross salary is 886,451 INR[1], the rate of savings by the applicant is consistent with such earnings. 

    [1] accessed on 2 July 2020.

24. While the Tribunal does not consider that the applicant is particularly wealthy, and the sponsor stated as much at hearing, the Tribunal accepts the evidence submitted at hearing that the applicant is comfortable and that importantly his wife’s family were all in India and they had no intention of causing disruption to their lives by moving to Australia. 

    cl.600.211(c)

    The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The Tribunal was also persuaded of the applicant’s credibility and intention to stay only temporarily in Australia, because the applicant lives with his elderly parents and is the only offspring who can provide care and assistance to them into their old age.  The Tribunal is satisfied that the applicant’s parents represent a significant incentive for the applicant to return to his home country on expiry of his visa as does his nuclear family in India.

25. 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

26. 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.

    Rosa Gagliardi
    Member