Singh (Migration)

[2024] AATA 3834

Singh (Migration) [2024] AATA 3834 (22 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Gurwinder Singh

VISA APPLICANT:  Mr Sukhwinder Singh

CASE NUMBER:  2308251

HOME AFFAIRS REFERENCE(S):          BCC2023/2294142

MEMBER:Linda Holub

DATE:22 August 2024

PLACE OF DECISION:  Sydney

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 22 August 2024 at 4:44pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visit Australian family members – applicant is well connected to family – positive family migration history – family members complied with their visa conditions on all occasions – family, business and property provide incentives for him to return to India – satisfied that the visa applicant genuinely intends to stay temporarily in 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 17 April 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 13 April 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 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 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 they were not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out.

5. The review applicant appeared before the Tribunal on 14 August 2024 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video through the Microsoft Teams application. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. Specifically, the review applicant resides in Melbourne and the case was constituted to a Sydney-based member.

6. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, determining that there would be unnecessary delay to the matter if the hearing was not conducted by video. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had difficulty understanding or responding to the questions being put to him. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The Tribunal also received oral evidence from the visa applicant. He provided evidence by telephone as he was unsuccessful in connecting to the video link.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages who assisted visa applicant.

9. The review applicant was represented in relation to the review.

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

BACKGROUND

11) The review applicant first came to Australia in July 2007 on a Vocational Education and Training Sector (TU-572) visa. He was further visas of that type in August 2006, September 2008 and again in May 2010. In between those visa grants, he held various Bridging visas and on 21 September 2012, he was granted a Labour Agreement (VB-885) visa. He became an Australian citizen on 14 January 2020.

12) The visa applicant is the brother of the review applicant. He was born in India, in October 1984 and, according to this application, is married. He was first granted a Vocational Education and Training Sector (TU-572) visa on 19th December 2008 and arrived in Australia in February 2009. He departed and returned to Australia on that visa a number of times. He held a number of Bridging visas and on 23 February 2012 was granted a Skilled Graduate (Temporary Graduate) (VC-485) visa.  This visa was valid until 23 August 2013 after which he again held a number of Bridging visas. Since departing Australia on 12 January 2015, the visa applicant has not returned to Australia.

13) In his application, the visa applicant sought to travel to Australia for the period 3 August 2023 to 12 August 2023. He claimed that he is self employed by S.S. Steel Shuttering Supplies since 3 April 2020. The shop is located in Ludhiana, Punjab, India. He wrote that he has sufficient money to support himself for 10 days but if required, the review applicant can support him. He advised that he will be staying with review applicant whilst in Australia.

CLAIMS AND EVIDENCE

Information provided to the Department

14) The Department was provided with the following documents and information:

·A certificate of annual income for the visa applicant provided by chartered accountants and dated 2 March 2020.

·From the same chartered accountant, a statement of the visa applicant’s movable and immovable assets which appears to be related to the previous certificate but is undated.

·A balance confirmation certificate from the HDFC Bank in respect of the applicant’s savings account as of 10 April 2023.

·Income tax return acknowledgements in relation to the visa applicant for the financial years 2020 – 2021, 2021 – 2022 and 2022 – 2023.

·A valuation report in respect of a parcel of property owned by the visa applicant in Ludhiana, Punjab.

·A birth certificate and other identification information in relation to the visa applicant’s son.

·A letter from Sacred Heart Convent School dated 12 April 2023 stating that Yuvraj Singh, who was born in November 2015, is a student at the school.

·A copy of visas pertaining to the visit applicant’s travel to Malaysia and Singapore in 2019. Relevant pages of his passport were also provided showing that the visas were utilised.

·A copy of the visa applicant’s marriage certificate showing he was married on 2 February 2014.

·Banks statements in relation to the review applicant’s Complete Access account at Commonwealth Bank of Australia, for the period 13 March 2023 to 13 April 2023.

·The review applicant’s individual tax returns for the financial years ending 30 June 2020 and 30 June 2021.

·Various utility bills pertaining to the review applicant.

·Contractual documents regarding the purchase of a property by the review applicant.

·A letter from the review applicant inviting the visa applicant and his sister-in-law to visit Australia to celebrate his son’s birthday. It refers to the visa applicant’s previous visa refusal and that on this occasion, he has provided a number of references.

·A letter addressing the Department’s refusal decision.

Oral Evidence

Evidence provided by the visa applicant

15) The review applicant gave evidence confirming his migration history and explaining that he was a student from 2007 until 2011 during which time he studied hospitality management. He stated he decided to remain in Australia after his studies was subsequently granted Australian citizenship and then married in 2015.

16) The review applicant stated he and his wife have two children together aged seven and a a half and two and a half. One is aged seven and half and the other is two and a half years old. The family lives in four-bedroom house on which the review applicant has a mortgage. He explained that his mother, who is currently living with them came to Australia about two and a half months ago and first stayed with his sister in Perth. He stated that she has travelled to Australia on multiple occasions since 2008 and increasingly since his father’s death.

17) The review applicant also gave evidence that in addition to his sister who resides in Perth and is married, his older sister and her husband have also travelled to Australia. I asked him to provide the names and other details of these family members. I explained that I would review their migration history. I told him that if members of his family had complied with the conditions of their visas I would put positive weight on that, although I would also take account of their individual circumstances being different to that of the visa applicant.

18) The review applicant stated that for the past nine years he has worked in telecommunications and does work for NBN as well as for security companies in relation to CCTV cameras and alarms. His wife is not working outside the home.

19) The review applicant stated that the visa applicant applied for the visa last year to attend his son’s first birthday ritual celebration. He stated that since his father passed away, his brother is an especially important connection for him. He stated that since his brother was last in Australia a lot has changed in life including him getting married, having children, setting up his business and purchasing a house. The review applicant stated that he would like his brother to visit in light of these changes.

20) The review applicant stated that should he be granted the visa, the visa applicant will pay for his own airfare, but he is also happy to pay. He stated his brother would visit Perth and Melbourne. The visa applicant would stay with him in Melbourne and with their sister in Perth.

21) In relation to the incentives for the visa applicant to return home after his visit, the review applicant stated that the visa applicant has a son who is around eight years old and his wife, his business and he responsibility for the family property in India. He stated that if the visa applicant he does not return, the business will be ruined he and it will be problematic for the family. He stated that the visa applicant cannot leave the family in India and that he is close to their grandfather who lives in the village.

Evidence provided by the visa applicant

22) The visa applicant stated he would like to come to Australia for two to three weeks if he is granted a visa because he used to live here and is close to his nephew. He stated his sister has been living in Australia for the past five years. He advised that he like to see her and meet her husband as well as spend time with the review applicant and his family.

23) In relation to his business, the visa applicant stated that he can leave it for a short period as he has one employee who can handle the work while he is away, and his grandfather can look after the land and farm.  and his grandfather can look after the land and farm for that period.

24) The visa applicant stated that the incentives for him to return to India after his visit, include his wife and son. He stated he cannot live without his child. He stated he is also very attached his grandfather who is now 90 years old. He also referred to his business as an incentive for his return to India.

25) I asked the visa applicant about his previous time in Australia. He stated that when he was living in Australia he returned to India regularly for two or three months at a time. He advised that after his divorce he was no longer eligible to be a dependent on his wife’s visa. I asked him why he did not attend a Tribunal hearing following the refusal of his own visa application. He responded that after he divorced he became depressed and returned to India. I put it to him that he was invited to a telephone hearing and asked him why he did not participate. He responded that he wasn’t talking to anyone and wasn’t checking his emails. I put it to him that despite not attending the scheduled hearing he pursued judicial review of the Tribunal decision to affirm the Department’s refusal but then did not participate in the case. He responded that he wrote to his lawyer and asked that his letter be presented court, but later came to know that it wasn’t presented.

26) The visa applicant stated that he had not had any problems in India for any reason.

Concerns put to the review applicant

27) I put my concerns regarding the visa applicant’s approach to his Student visa application, as well as his subsequent behaviour in respect of his review and appeal applications, to the review applicant. He responded by saying that the visa applicant had been going through difficulties during that time and also referred to his depression. He stated that the visa applicant wanted to remain in Australia but because of his difficulties the review applicant encouraged him to return home where he would have more support. He stated that after doing so the visa applicant settled down, married and had a child.

28) The review applicant informed me that other family members have also visited Australia. I asked him to provide their details after the hearing and explained that I would put positive weight on the family’s compliance with their visa conditions once I had checked the information available from the Department’s records.

Post hearing submissions

29) Following the hearing the review applicant provided relevant personal details in relation to his mother, aunt, his elder sister, and her husband.

30) Having reviewed the relevant movement records the Tribunal finds that they establish the review applicant’s

·mother has travelled to Australia on multiple occasions on either Tourist (TR-676) or Visitor (FA-600) visas since early 2008 and is currently in Australia.

·elder sister travelled to Australia on a Visitor (FA-600) visa on three occasions those being March 2018, March 2019, and April 2024.

·brother-in-law travelled to Australia twice on a Visitor visa (FA-600) in March 2019 and April 2024.

·aunt travelled to Australia once in May 2023.

31) The aformentioned family members complied with their visa conditions on all occasions.

CLAIMS AND EVIDENCE

32) The issue in this case is whether cl 600.211 is met. 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.

1. In the present case, the visa applicant seeks the visa for the purpose of visiting the review applicant and his family as well as their sister and her husband. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

34) 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)).

35) According to the application, he was previously refused a visa of the same type in July 2022. He wrote that prior to that he breached migration conditions by departing Australia without permission as his mother was critically ill. He wrote that all the fines have been paid and attached receipts of those payments for reference. Having regard to the information before it, the Tribunal notes that the visa applicant was not deported but was refused a Student visa.

36) 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(2):

·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.

FINDINGS AND REASONS

37) Having considered all the evidence before it the Tribunal accepts that the visa applicant wishes to come to Australia for up to three months for the purpose of visiting his brother and sister. The Tribunal accepts that he can fund the cost of his airfare and other costs and that he will stay with the review applicant and his sister while in Australia. The Tribunal accepts that the review applicant is prepared and able to support the visa applicant financially if necessary.

38) The Tribunal accepts that the visa applicant has no intention of working, studying or undertaking any training in Australia.

39) The Tribunal accepts that the visa applicant’s wife, grandfather, extended family, business and property provide incentives for him to return to India at the end of his permitted stay in Australia.

40) The Tribunal had some initial concerns regarding aspects of the visa applicant’s previous migration history. However, the Tribunal did not put significant weight on the fact that the visa applicant was refused a visa, and subsequently sought Tribunal and judicial review of that decision but not pursue those applications with any diligence. The Tribunal has had regard to the fact that some years have passed since that occurred and the visa applicant’s circumstances have changed since that time. Additionally, the Tribunal considered positively the overall extensive good migration history of various other members of the review applicant’s family.

41) Condition 8503 refers to entitlement and does not require compliance. The Tribunal accepts that the visa applicant intends to comply with the conditions of the visa. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

42) 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

43) 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.

Linda Holub
Member