Singh (Migration)

[2017] AATA 2301

Singh (Migration) [2017] AATA 2301 (10 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ravinder Singh

VISA APPLICANT:  Ms Gurinder Kaur

CASE NUMBER:  1700727

DIBP REFERENCE(S):  P16/4891

MEMBER:Ian Berry

DATE:10 November 2017

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 10 November 2017 at 12:17pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine Temporary Entrant – Respected by employer’s organisation – Previous travel history

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 600.211, cl 600.221

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 Immigration on 30 December 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The 2^nd named applicant applied for the visa on 12 December 2016. At the time the 2^nd named application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the 2^nd named 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 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the 2^nd named 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 2^nd named applicant did not meet cl.600.211 because 2^nd named applicant insufficient nexus within her country satisfying that she would return on the completion of the visa cessation date

5. The 1^st named applicant appeared before the Tribunal 7 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the 1^st named applicant Mr Ravinder Singh, the 1^st named applicant’s wife and the 2^nd named applicant.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The 1^st named applicant was represented at the review by his registered migration agent.

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

9. CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicant seeks the visa for the purposes of visiting her brother the 1^st named applicant, and his wife and son born 27 Fairbury 2014 (aged 3 ½ years). This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221.

12. In considering whether a 2^nd named 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)).

13. The 1^st named applicant is an Australian citizen and is married to Mrs Sandeep Kaur, and between them have a son. 

14. The 2^nd named applicant is a single woman aged 29 years, the only sister of the 1^st named applicant, living in India with her parents.  The 2^nd named applicant has the benefit of full-time employment.  She is employed with SIFA where she is a computer teacher.  She has a 2^nd job where she is a tutor of young people. 

15. With SIFA, the visa applicant earns INR15,000 per month, while as a tutor she earns INR7000 per month.  In all she testifies that she earns INR22,000 per month and has no substantial expenses.  Living with her parents allows her to save and as she expects to be married by traditional customs, expects to be living with her parents until she is married.  She testifies that she has saved INR110,000.  She further says that she only has a limited time from her employment and that is from 15 November 2017 to 8 January 2018.  This is corroborated by a letter from her employer.  She says that her parents own their own home and are teachers.  Because of their occupations as teachers, they cannot apply for leave to attend Australia and thus only the 2^nd named applicant is attending.

16. The 1^st named applicant’s wife has medical complications since the pregnancy with her son.  She explains that she suffers from sharp shooting pains on the left side with numbness in her toes of her left foot.  She has been to medical specialists and is seeking a solution to her health problems.  Both the 1^st named applicant and his wife confirm that the 2^nd named applicant is coming to assist the 1^st named applicant’s wife wherever she can as well as looking after and caring for her nephew.  Thus, the secondary purpose of the visit is to assist the 1^st name applicant’s wife by providing her with some respite.

17. The 2^nd named applicant has received increases in her monthly remuneration.  Initially, she receives an income of INR10,000 per month.  She then received an increase to INR13,000 per month and is now receiving INR15,000 per month.  This has occurred in a relatively short period of time.  It is reasonable to infer, the Tribunal makes that inference, she is a person respected by her employers’ organisation.  That inference reasonably suggests that the 2^nd named applicant has a reason to return to India within the allocated time, if not before.

18. 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(3)):

    ·8101 – must not work in Australia

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

19. The Tribunal accepts that the visa applicant will attend Australia to visit her brother, brothers wife and nephew.  It is also accepted she will assist her sister-in-law wherever she can for the limited time she has available from her employment.  The Tribunal does not draw an adverse inference that she will use, as a means of staying in Australia, the need to continue to assist her brother’s wife.

20. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The 2^nd named applicant has been a FA 600 tourist on 2 previous occasions.  The 1^st named applicant gave evidence that his sister attended in 2013 for 4 months.  This stay was during his wife’s pregnancy with their only son.  The second occasion was in 2014 where she stayed for 3 months and within that time applied for an extension of 3 months.  The Tribunal accepts this evidence as supporting the inference that the 2^nd named applicant will return to India.  It does not make an adverse inference in that she applied for an extension of 3 months.

21. 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.

22. 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

23. 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.

    Ian Berry
    Member