Singh (Migration)

[2024] AATA 302

Singh (Migration) [2024] AATA 302 (15 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jarnail Singh

VISA APPLICANT:  Mr Satnam Singh

REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)

CASE NUMBER:  2321038

HOME AFFAIRS REFERENCE(S):          BCC2023/5545937

MEMBER:Margie Bourke

DATE:15 February 2024

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 15 February 2024 at 1:25pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – family visit – genuine temporary entrant and compliance with conditions – previous application remitted, visa granted but applicant unable to travel because of COVID travel restrictions – children included in visa application, but not review application – wife, children, mother and business in home country – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, 600.211, Schedule 8, cls 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 Home Affairs on 1 December 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 26 September 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 the visa applicant genuinely intends to stay temporarily in Australia the purpose for which the visa is granted.

5. I have considered the information provided to the Department in support of the application for the visa, and the information in the Department’s decision record dated 1 December 2023.

6. The review applicant had applied to the Tribunal for review of a decision of the Department dated 16 August 2018 refusing the visa applicant a Subclass 600 visitor visa. I conducted the review hearing in that matter on 16 January 2020, and heard evidence from the review applicant who appeared before the tribunal, and from the visa applicant who attended the hearing by telephone. The review was remitted back to the Department, and the visa applicant was subsequently granted a visitor visa. I have considered that I have heard relevant evidence in relation to a similar matter from both the review applicant and the visa applicant in a previous hearing.

7. I am satisfied based on the information available to the Tribunal that I can make a decision favourable to the visa applicant without proceeding to hearing, pursuant to s.360(2)(a).

8. The following are the written reasons that the Tribunal has concluded that the matter should be remitted back to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. As stated above, I heard evidence from the visa and the review applicant in a similar review on 16 January 2020. In my decision record dated 16 January 2020 the matter was remitted back to the Department. I accept that the visa applicant was granted a visitor visa to travel to Australia. I accept the submission of the review applicant that the visa applicant had booked his return flights departing 28 March 2020, returning on 25 April 2020, for his travel to Australia as the holder of the visit visa.

12. I am satisfied that due to the global pandemic and the international travel restrictions, the visa applicant was unable to travel to Australia during the time the visitor visa granted in 2020 was valid.

13. 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.

14. I am satisfied that the visa applicant has never travelled to Australia as the holder of a substantive visa or a subsequent bridging visa. I am satisfied that the visa applicant was granted a visitor visa in 2020, but due to pandemic never travelled to Australia. Therefore there is no evidence of compliance or non-compliance by the visa applicant with conditions of an Australian substantive visa or bridging visa. I give this consideration neutral weight on my assessment of whether the genuinely intends to stay temporarily in Australia.

15. 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.

16. I am satisfied the visa applicant wishes to visit his brother, his brother’s wife and his brother’s child, and to see where his brother and his family live, and to travel to some areas in Victoria.

17. I am satisfied that the visa applicant initially applied to travel to Australia with his two daughters to attend his niece’s birthday function and family traditions connected with her birthday, scheduled for December 2023. I am satisfied the visa applicant still wishes to travel to spend time with his brother and his family, but that this review does not include the application for his two daughters to travel with him, as the birthday celebrations have been completed and the two daughters are back at school.

18. I am satisfied that the visa applicant does not intend to work, study or train in Australia or to apply for a further visa whilst in Australia as the holder of the visitor visa. I am satisfied that the visa applicant intends to return to India before the expiration of the visitor visa. I am satisfied that the visa applicant intends to return to his home country before the expiration of the visa because of his commitments to his wife, his children, his mother, his farming business and his other employment and investments.

19. I am satisfied that the visa applicant intends to comply with the conditions to which the visitor visa would be subject. I am satisfied that the visa applicant genuinely intends to return to India before the expiration of the visa because he has family, community, financial and business commitments. I give these considerations positive weight in my assessment of whether the visa applicant genuinely intends to stay temporarily in Australia as the holder of a visitor visa.

20. Cl.600.211(c): – The Tribunal has also considered all other relevant matters. I am satisfied that the review applicant has previously sponsored his mother to travel to Australia as the holder of a visitor visa, and the review applicant’s wife has previously sponsored her parents to travel to Australia as the holders of visitor visas. I am satisfied there is no evidence that other members of the review applicant’s and the review applicant’s wife’s family have not complied substantially with the terms of previous visitor visas. I am further satisfied that the visa applicant and the review applicant understand that if the visa applicant does not comply with the conditions of the visitor visa, then the review applicant and his wife are unlikely to be able to successfully sponsor other family members to travel to Australia as the holder of visitor visas in the future. I give these considerations positive weight in my assessment of whether the visa applicant genuinely intends to stay temporarily in Australia purpose for which the visa is granted.

21. Conclusion: – 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

22. 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.

    Margie Bourke
    Member