Singh (Migration)

[2019] AATA 5684

Singh (Migration) [2019] AATA 5684 (7 November 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Karamjit Singh

VISA APPLICANT:  Mr Lakhvinder Singh

CASE NUMBER:  1821194
DIBP REFERENCE(S):

MEMBER:  Ian Garnham

DATE AND TIME OF

ORAL DECISION AND REASONS:         7 November 2019 at 2:09 pm (VIC time)

DATE OF WRITTEN RECORD:                13 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the 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 13 December 2019 at 11:00am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – family’s travel history – intention to comply with visa conditions – demographic risk – specific personal circumstances – decision under review remitted

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 July 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 7 November 2019 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
   ORAL DECISION OF MEMBER GARNHAM

3. MEMBER: This is an application for a review of a decision made by a delegate of the Minister for Immigration on 18 July 2018 to refuse to grant the visa applicant a (Visitor) (Class FA)visa under section 65 of the Migration Act.

4. The visa applicant, Mr Lakvinder Singh, is a 45 year old resident of India, and he applied for the visa on 25 June 2018. At the time the visa application was lodged, class FA contained one subclass, subclass 600 visitor visa, which has four streams. And in this case the applicant applied for the visa, seeking to satisfy the primary criteria in the sponsored family stream.

5. The criteria for a subclass 600 are set out in Part 600 of Schedule 2 to the Migration Regulations. 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. The delegate refused to grant the visa on the basis that the visa applicant did not meet clause 600.211, because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted.

6. The review applicant [who is the brother of the visa applicant] appeared before the tribunal on 7 November 2019 to give evidence and present arguments. The tribunal also received oral evidence from the visa applicant by telephone conference. The tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The review applicant was represented in relation to the review and the representative attended the tribunal hearing. There was also a submission provided dated 29 October 2019.

   CLAIMS AND EVIDENCE

8. The issue in this case is - turning to the consideration of the claims and the evidence in the case - the issue 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 to be granted. [This requires] 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, finally, any other relevant matter.

9. First, considering the purpose in the present case, the visa applicant originally saw the purpose - sponsored by his brother - primarily to assist with his parents’ travel and activities in Australia. It ensued that this applicant was obviously refused. The visa applicant is the

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brother of the review applicant, Mr Karamjit Singh, who is a long-term resident in Australia and Australian citizen since 17 May 2007. Despite the visa applicant being rejected by the Department, the parents of the visa applicant still made the travel to Australia, and I note they stayed approximately one year, returning to India on 7 September this year.

1. With respect to this application, the tribunal noted that in the application form the visa applicant requested up to six months. In discussions with him today about his travel, it became obvious to the tribunal that he primarily sees his role as an assistant to his parents and to facilitate their trip to Australia, primarily. I also refer to the submission in the penultimate paragraph, and a number of matters were discussed today with the review applicant of family events for both himself and his young child and also some events including his 51 year old brother who lives in Australia and also has two teenage children and who was also suggested in the original application, and discussed to some extent today, that the visa applicant would seek to assist his parents to conduct some tourist type activities throughout Australia.

2. I acknowledge that these are purposes for which visas in the sponsored family stream may be granted.

   cl.600.211(a):

3. Turning now to the first consideration for the tribunal and 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, or any subsequent bridging visa, this is subclause 600.211(a) of the legislation.

4. In this case, the 45 year old visa applicant has never travelled outside of India. However, other family members have travelled to Australia. A report detailing this travel - it is useful, I think - to sketch out the family tree, with respect to this family, and I note that the parents - the father of the applicants is 81 years old, the mother is 76 years old. They have six children - in age order - Sukbar - who is approximately 54, and lives with one child in India. Sukbar travelled to Australia for three months in 2016, along with his father. And based on the credibility of the witnesses today, I accept that this travel occurred and that it was compliant travel as I have no information to the contrary before me.

5. The second eldest child is Mukbar who also is 53 years old and resides in India and has two teenage children. Jagbia is the third eldest child and he lives in Australia. He is 51 years old and has an 18 and a 13 year old child and it is anticipated that he will participate in family events with the visa applicant and the parents, should all of their visas be granted.

6. The fourth oldest child is Ranjit, who also lives in India - lives independently with one child. Those three boys living in India all have children and partners and live away from the family home.

7. Next in line is the visa applicant who lives with his parents and is 45 years old. He has no partner and he has adopted the role as carer of his parents. Finally, the review applicant has one child. I have sketched his history and his child is now five years old and just begun attending school. He described to the tribunal that he works in the parcel delivery business as an employee. That he works long hours; he has been in his present position for six months. He has recently built and he lives in a house in Cranbourne that he has [acquired] through a mortgage and he explained to the tribunal that he works long hours and has limited time to assist in providing activities for his parents whilst they are in Australia. I acknowledge that there is no relevant travel [information] to assess with respect to the visa

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applicant. But, based on the credible information I have been given today, there is significant compliant travel to Australia by other family members.

cl.600.211(b):

1. Moving on now to consider the conditions which would apply to the visa and whether the visa applicant would be likely to comply with those conditions. I note he would be subject to condition 8101 - that he must not work in Australia; condition 8201 - that he must not engage in study or training in Australia for more than three months; condition 8503 - that he is not entitled to a substantive visa, other than a protection visa, whilst remaining in Australia; and, finally, condition 8531 - that he must not remain in Australia after the end of his permitted stay.

2. Returning to the first two of these conditions - not to work and not to engage in long-term study - I note that the visa applicant is 45 years of age and various documents have been provided to demonstrate that he has property interests in India, and also that he has some sort of real estate qualification whereby he is able to deal in real estate. When the tribunal put to the visa applicant that it was an unlikely scenario that a 45 year old single male would be able to leave his employment for so long, he explained to the tribunal that he has significant financial assets, and also that real estate business in India is a very long process and he can still manage his affairs from Australia and he is also seeking the potential to receive a long-term visa so that he could return to India and return to Australia within the visa period to primarily assist his parents with travelling to and from Australia, along with his sister (indistinct).

3. Whilst I acknowledge that the demographic of a 45 year old single male is not one that is normally associated with a person of low risk with respect to working, or seeking to study and/or work in Australia, I acknowledge that the visa applicant and the review applicant have been credible in their evidence with respect to the visa applicant’s position. I also accept and acknowledge that at 45 years of age he has spent a long time living with his parents and devoting his time to their care. I should have perhaps mentioned that they are now 81 years old and 76 years old. For these reasons, I consider it as unlikely that the visa applicant would breach either of those conditions I have just discussed.

4. Turning now to condition 8503 - that he is not entitled to a substantive visa, other than a protection visa. I note in the submission a paragraph was devoted to the political and conflict situation in India, whereby the submission claims it is unlikely that the visa applicant would be able to claim protection reasons due to instability in that area, and furthermore, there is no other information before me that this family or the visa applicant himself would have any significant grounds with which to seek a protection visa whilst in Australia. With respect to not remaining in Australia after the end of the permitted stay, I note that the parents have always returned within their visa periods and a strong commitment by the visa applicant came through at today’s hearing that his major role is to assist them. And I suspect that he will to, as they do, and as long as they return within the visa period, he would see it as his role to do likewise.

5. Therefore, for these reasons I consider the visa applicant - whilst demographically appearing to be a significant risk of breaching these conditions - based on the personal circumstances that have been disclosed to the tribunal throughout the hearing and the application, the tribunal accepts that there is low likelihood that he would seek to breach these conditions whilst in Australia.

   cl.600.211(c):

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1. Moving on to final relevant matters, I also note that the visa applicant is the person best placed to assist his parents with the travel. He is 45 years old and has always lived in the family home. The review applicant provided evidence that his parents have become somewhat infirm and genuinely require assistance with their travel. And in this regard, I note he himself - the review applicant - conducted travel when his mother travelled to Australia in the period of 2015. He returned with his mother to Australia after a holiday trip to India, and he departed again with her to travel back with her to India to assist with her travel.

2. This is strong evidence that she is unable to travel alone. Similarly with the father, he claimed he is infirm to the extent that he requires a walking stick for any type of ambulation, and I accept that there is a genuine need for these people to be assisted with their travel, and I also acknowledge that - based on the family dynamics whereby all the other children have family commitments and work commitments in India or Australia - the visa applicant appears to be the person best placed to assist them in such travel.

3. With respect to financial assets, I also note that the visa applicant was quite unequivocal with respect to purchasing tickets for his parents, in addition to providing and caring for his parents. He has not sought and claims he does not seek and has not sought financial participation from his brothers in caring for them and these things demonstrate to the tribunal that he has significant financial security within his own funds and income sources to return to those property and financial interests at the end of a period of stay in Australia. He also expressed to the tribunal that he wants to travel to Canada with his parents who are seeking to hopefully make a trip there, whilst they are still able, to visit various relatives there and he is intending to assist them with that travel [also].

4. He acknowledged and it is acknowledged in the submission that all of this other travel would be jeopardised, including travel to Australia by other family members, by him failing to comply with the conditions of the visa.

5. Therefore, having said all that - and accepting that I have received credible and cogent evidence that has been consistent on a number of levels - balancing the various matters, I am now satisfied that the visa applicant will comply with the conditions and that he genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted.

6. Therefore, I find that the requirements of clause 600.211 are met. Therefore, the formal decision of the tribunal is as follows: the tribunal remits the applications for a class FA visa for reconsideration, with the direction that the visa applicant meets the following criteria for a subclass 600 (Class FA) visa - clause 600.211 of Schedule 2 to the Regulations.

7. That concludes my reasons for decision and the decision in this matter.

   END OF ORAL DECISION

   DECISION

8. The Tribunal remits the decision under review with the direction that the 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

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