Singh (Migration)

[2023] AATA 3514

Singh (Migration) [2023] AATA 3514 (12 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Bachitar Singh

VISA APPLICANTS:  Mr Shamsher Singh

CASE NUMBER:  2214253

HOME AFFAIRS REFERENCE(S):          BCC2022/1552395

MEMBER:Naomi Schmitz

DATE:12 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 12 September 2023 at 9:47am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting his brother – applicant failed to attend hearing – lack of overall evidence submitted in support of the application – economic conditions in India – Tribunal is not satisfised visa applicant genuinely intends to stay temporarily in Australia– decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 360, 379

Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 22 July 2022 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 5 May 2022. 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 that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

5. On 26 September 2022, the review applicant applied to the Tribunal for a review of the refusal decision and provided a copy of the delegate’s decision record to the Tribunal.

6. On 3 August 2023, the Tribunal invited the applicant under s 360(1) of the Act to appear at a Tribunal hearing by Microsoft Teams video-link commencing at 11:30 am (ACT time) on 18 August 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

7. In support of the application for review, the review applicant provided various documents to the Tribunal including the visa applicant’s motor vehicle registration card; the review applicant’s wife’s banking records (screenshots of a St. George Bank and National Australia Bank accounts totalling approximately $21,000); photographic evidence; a joint signed statement from the review applicant and his wife, the visa applicant’s Singapore visa grant notice (issued on 16 May 2023 and valid until 18 July 2023) and visa applicant’s flight booking confirmation to Singapore with a departure date of 5 April 2023 from Amritsar, India arriving on 6 April 2023 Singapore and a departure date of 12 April 2023 from Singapore to Amritsar, India arriving on the same date.

8. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place referred to at [6] above. The Tribunal Member waited until 12:03 pm on 18 August 2023, before declaring a ‘no show’ hearing. There is no evidence before the Tribunal that the review applicant made any attempt to participate in the hearing by attempting to join online or by telephone. There is also no record of the review applicant contacting the Tribunal by any other means at the scheduled time including to notify the Tribunal if he was experiencing any issues in attending the hearing. The Tribunal further notes that the review applicant did not return to the Tribunal a signed response to hearing invitation indicating that he would attend the scheduled hearing.

9. The review applicant was represented in relation to the review by a close family member, namely the review applicant’s wife. The representative did not attend the hearing.

10. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5) of the Act, and the invitation has not been returned to sender. No satisfactory reason for the non-appearance has been given.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. The visa applicant is a 30-year-old citizen of India. Information before the Tribunal indicates that he currently resides in Tarn Taran, Mari Megha, Punjab, India. He is of the Sikh religion. In the present case, the visa applicant seeks the visa for the purpose of visiting his brother, the review applicant, who is an Australian citizen. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

14. At the time of application, the visa applicant requested a Visitor visa for up to three months, with a planned arrival date of 1 June 2022 and a departure date of 20 July 2022. The review applicant in a letter of support indicated that he and his wife would provide financial support and accommodation. During the visa applicant’s stay, the review applicant indicated his brother would stay in Australia for approximately five to six weeks, to visit family and undertake sightseeing, including the South Coast of New South Wales, the Gold Coast and Melbourne. In the visa application, the visa applicant indicated that he would be financially supported by another. Financial records referred to in [7] above indicate that the visa applicant will be financially supported by the review applicant’s wife.

15. 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)). In the present case, the visa applicant has not previously travelled to Australia. Consequently, there is no demonstrated compliance or non-compliance with previous visa conditions upon which the Tribunal can use to assess whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

16. 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 (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; and

    ·8531 – must not remain in Australia after end of permitted stay.

17. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201 given the short duration of the visa applicant’s proposed stay and the financial support offered by the review applicant’s wife. However, based on the paucity of evidence before the Tribunal, the Tribunal is not satisfied that the visa applicant intends to comply with condition 8503 and 8531 which is discussed below cl 600.211(c) in the context of whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

18. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal has considered the purpose of the visit referred to in [13] and [14] above. This appears to be a valid reason to apply for a Visitor visa to Australia.

19. The review applicant and his wife claim that the visa applicant has travelled to Bangkok and Singapore. It is unknown for how long and for what purpose. No corroborative evidence such as the visa applicant’s passport with immigration stamps were provided to the Tribunal. Photographic evidence submitted shows the visa applicant on an elevated platform but as the image is unannotated it is unclear where and when the photo was taken and what it proposes to support.

20. In relation to family, information before the Tribunal indicates that the visa applicant has a brother, the review applicant, who resides in Canberra, Australia, with his wife. In India, the visa applicant has a wife and two young children, aged approximately two and five years respectively. He also has parents who he claims to take care of and other extended elderly family members who live in their local village of Mari Megha. 

21. The visa applicant is a self-employed farmer since 9 July 2020. The visa applicant claims to manage two farm hands and run a small grain purchasing and selling stall in the local grain market. The visa applicant claims to own a house valued at approximately AUD100,000, 10 acres of land valued at AUD300,000 and various farm machinery including tractors, trailers and equipment valued at AUD15,000, various motor vehicles valued collectively at AUD50,000 including a Mahindra Scorpio 2019 model, Suzuki Swift 2017 model and a Honda Activa Scooter Motor bike. The visa applicant also claimed to have AUD10,000 in savings. No updated bank financial records, certificates of title or valuation certificates from the visa applicant were provided. Photographs depicting a property, various farm landscape, farm animals and motorcycles were provided to the Tribunal. A certificate of registration for a Scorpio motor car referred to in [7] above was provided.

22. At the time of application, a certificate of title for the Village of Mari Megha, with various property owners was provided. Page one depicts the names of the visa applicant, the visa applicant’s father and visa applicant’s grandfather. It is however unclear what proportion of any property the visa applicant owns. The Tribunal further notes the certificate is dated 2017-2018 and approximately five years old. A valuation report for a residential property in the sum of approximately AUD125,000 was submitted which the Tribunal has had regard to. The visa applicant’s 2020-2021 Income Tax Return was provided showing a total income of INR301,560 (equivalent to AUD5,680) with INR1000 tax paid (equivalent to AUD18). A 2021-2022 Income Tax Return showing a total income of INR308,120 (equivalent to AUD5,804) and zero tax paid was provided. A joint bank account statement in both the visa applicant and his father’s name (Jarnail Singh) was provided with a closing balance on 13 March 2022 of INR906,733,70 (equivalent to AUD17,049). The transaction history does not identify which deposits, if any, relate to the visa applicant and what proportion, relate to the visa applicant’s father.

23. The review applicant and his wife claim that they would be prepared to lodge a security bond to guarantee the visa applicant’s return to India.

    Findings

24. The Tribunal has considered all matters carefully. The Tribunal accepts that the visa applicant has a valid reason to visit Australia to see his brother the review applicant and his wife and to undertake sightseeing. The visa applicant has not travelled to Australia before and therefore there is no demonstrated history of compliance or non-compliance with previous visa conditions.

25. Whilst the Tribunal accepts that the visa applicant was granted a visa to Singapore and purchased a flight ticket, it is unclear whether the visa applicant ultimately travelled to Singapore as no credible and reliable evidence was provided in support, such as the visa applicant’s passport depicting country immigration stamps. The Tribunal also notes that the flight dates pre-date the grant of the Singapore visa and therefore raises questions as to how the visa applicant could travel to Singapore during this time. The Tribunal therefore does not regard the flight ticket or visa grant notice as constituting evidence of travel to Singapore. In addition, no evidence was provided to support that the visa applicant has travelled to Bangkok. Even if the Tribunal were to accept that the applicant has travelled to Singapore and Thailand, there is no evidence to support that the visa applicant has family who reside there permanently, unlike Australia, where the visa applicant has a brother. The Tribunal further does not regard Thailand’s country circumstances as comparable to those of Australia.

26. Whilst the Tribunal accepts that the visa applicant has family who reside in India, the visa applicant equally has family who reside in Australia and the Tribunal is not satisfied that the visa applicant’s wife, children and extended family would act as a strong incentive to return to India. Whilst various claims were made as to property ownership and income, the Tribunal has carefully reviewed the taxation returns, banking records and property title and is not satisfied that the visa applicant has a strong incentive to return to his home country of India.

27. The certificate of title shows many property owners in the Mari Megha village. Further, it is unclear what property interest, if any, the visa applicant shares with his father and grandfather and accordingly limited weight is placed on it as an incentive to return. Further, the Tribunal notes the age of the document, which at best is five years old, and at worse six year old, with no updated evidence of property ownership. The Tribunal does not regard the photographic evidence of a house, farm, farm animals and farm equipment as credible and reliable evidence of property ownership given the ease in which photographs can be taken of objects. The Tribunal has had regard to the motor vehicle certificate of registration and accepts the visa applicant owns a Scorpio motor vehicle. However, due to the ease in which such motor vehicles can be transferred or sold, limited weight is placed on it as an incentive to return home to India.

28. The Tribunal accepts that the visa applicant operates a grain business which derives an income. However, after reviewing all the financial evidence, including taxation returns, the Tribunal is not satisfied that it constitutes a sufficient economic incentive to return to India. The business turnover demonstrates that it is not a high-income producing business. The visa applicant’s income taxation returns places him in the second lowest income tax level in India. The total tax payable for the financial year 2020-21 was 1000INR equivalent to $18AUD which decreased to zero tax in 2021-2022. His total income for 2020-2021 was $5,680AUD, with it slightly increasing in 2021-2022 to $5,804AUD. Further, the visa applicant claims he has two employees ‘farm hands’, however produced no records or evidence in support. Overall, the financial documents submitted to the Tribunal do not support the visa applicant, review applicant and representative’s claims that the visa applicant is running a successful business. The Tribunal also notes that the visa applicant has only operated the business for three years, which the Tribunal regards as still in its infancy and does not regard it as a strong economic incentive to return.

29. Although a joint bank account statement was provided by the visa applicant (with his father being a joint account holder), it is unclear what proportion of the funds were contributed by the visa applicant. The Tribunal further notes that no updated records have been supplied in over 18 months and accordingly the Tribunal regards the records as obsolete. Even if the Tribunal were to accept that the visa applicant has savings of AUD$10,000 as claimed (no evidence was produced in support), limited weight is placed on them as they could be easily transferred or accessed remotely from within Australia.

30. Another relevant factor the Tribunal may consider is the situation of a visa applicant’s home country, India, as this may appear to be a disincentive to return. The latest DFAT country information report which details the economic situation.[1] The report details that in 2019, the Indian economy suffered a slowdown, with there being a lack of growth in wages and jobs. India’s economy has also been impacted sharply by the COVID-19 pandemic resulting in it entering into its first ever technical recession in the second quarter of the financial year of 2020 and 2021. In contrast Australia has a much stronger economy.

    [1] Department of Foreign Affairs and Trade Country Information Report – India dated 10 December 2019 and s.359A(4)(a) of the Act.

31. The Tribunal has considered the offer of a security bond to guarantee the visa applicant’s return if he were to overstay. However, given the paucity of the evidence regarding the visa applicant’s incentives to return to India, and the economic conditions in India, the Tribunal is not satisfied that the payment of security would allay its concerns about the visa applicant having a genuine intention to stay temporarily in Australia. In light of the visa applicant’s overall financial circumstances, the visa applicant may very well consider that he has better prospects of living in Australia to financially support himself and his family in India.

32. The Tribunal notes the lack of overall evidence submitted in support of the application for review and that it is not the Tribunal’s role to present the review applicant’s case for him.

33. Thus, considering all these matters cumulatively, the Tribunal is not 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 not met.

    DECISION

34. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Naomi Schmitz
    Member