Singh (Migration)

[2023] AATA 571

Singh (Migration) [2023] AATA 571 (13 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sukhbir Singh

VISA APPLICANT:  Mr Sikander Singh

REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)

CASE NUMBER:  2205823

HOME AFFAIRS REFERENCE(S):          BCC2022/381953

MEMBER:K. Chapman

DATE:13 February 2023

PLACE OF DECISION:  Brisbane

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 13 February 2023 at 8:41am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visiting her brother – family members resident in India– visa applicant genuinely intends to stay temporarily in Australia – strong incentives to depart Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, 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 Home Affairs, on 31 March 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, Mr Sikander Singh applied for the visa on 21 February 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 Tourist 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 he 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 he was assessed as not genuinely intending to stay temporarily in Australia. On 19 April 2022 the review applicant, Mr Sukhbir Singh, (the brother of the visa applicant), applied to the Tribunal for review of the visa refusal decision. He provided a copy of the delegate’s decision to the Tribunal with his review application. Additionally, the review applicant lodged material including, inter alia, documentation regarding his own Australian permanent residence, pay slips, financial records and employment verification documentation. All submitted material has been duly considered by the Tribunal.

5. The review applicant appeared by video before the Tribunal, on 3 February 2023, to give evidence and present arguments. He confirmed that he was comfortable participating in the hearing by video. The Tribunal also took evidence by video from the offshore visa applicant and from the review applicant’s wife, Mrs Alka Deva. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The review applicant was represented in relation to the review. The Tribunal observed each witness provide their evidence through a clear video link. The Tribunal was particularly impressed with the evidence of Mrs Alka Deva, who is employed as a Registered Nurse in Australia. Following careful consideration, the Tribunal is satisfied with the honesty of the evidence provided at the review hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 he has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by him was subject; whether he intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

   Evidence before the Tribunal

8. The evidence provided to the Tribunal, in summary, establishes the following facts. The visa applicant is 33 years of age. He resides with his extended family in India, including his wife and two children, in proximity to their family held agricultural land. The visa applicant is employed in a managerial role in a bank. His assets include a block of land, vehicles and investments. The bulk of the visa applicant’s family reside in proximity to him. The visa applicant seeks to take a holiday in Australia to visit his brother. His wife and children will remain in India during that visit.   

9. The review applicant is employed in the transportation sector in Australia. His wife is a Registered Nurse. They are building their own home together in Australia. The review applicant and his wife are confident the visa applicant will only travel to Australia to conduct a genuine visit. The visa applicant gave his evidence in a manner consistent with that of the review applicant and his wife. For completeness, the Tribunal records that there is nothing in evidence before it to suggest there is any risk of harm for the visa applicant in his country of nationality. 

   Analysis

10. The Tribunal records that it was satisfied with the truthfulness of the evidence provided by the review and visa applicants at hearing. They answered the Tribunal’s questions in a manner consistent with each other and the submitted documentary material. In particular, the Tribunal was impressed with the evidence of Mrs Deva and her evidence is afforded high weight.

11. In the present case, the visa applicant seeks the visa for the purpose of visiting his brother in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

12. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)). The visa applicant has not held an Australian visa before. This is a matter that weighs neither in favour of, nor against, the grant of the Subclass 600 visa to him.

13. 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.600.611):

    ·8101 – must not work in Australia; and

    ·8201 – must not engage in study or training in Australia for more than 3 months.

    Discretionary visa conditions may also be imposed, however, given the delegate did not refer to these in the primary decision the Tribunal proceeds upon the basis they would not have been. Given the reasonable financial position of the review applicant and his wife in Australia, the Tribunal is satisfied the visa applicant would refrain from working in this country and accordingly comply with condition 8101 if he were to be granted a Visitor visa. Further, given the stage of life of the visa applicant, in combination with his employment situation in India, the Tribunal is satisfied that he will not attempt to study in Australia. Accordingly, the Tribunal finds the visa applicant would comply with condition 8201 if he were to be granted a Visitor visa. These are matters that weigh in favour of granting the visa to him.

14. The Tribunal has also considered all other relevant matters as required by cl.600.211(c). As outlined, it is apparent the review applicant and his wife in Australia have the financial means to support a visit of the visa applicant to this country. Furthermore, the visa applicant’s employment in the banking sector in India, combined with his family members resident in that country, are strong incentives for him to return. The Tribunal accepts that the visa applicant and his immediate family are happy with their lives in India.

15. On balance, the Tribunal finds that the personal circumstances of the visa applicant suggest he will return to India if permitted to visit Australia. The Tribunal makes this finding, in large part, due to its assessment that the witnesses provided truthful evidence at hearing. In particular, the Tribunal is satisfied the review applicant and his wife would be well aware that any visa non-compliance by the visa applicant would place in jeopardy future Australian visa applications made by members of their family, and they would not allow this.

16. 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

17. 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.

    K. Chapman
    Member