SINGH (MIGRATION) - [2024] ARTA 128

SINGH (MIGRATION) [2024] ARTA 128 (15 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Sonia Singh
Visa Applicant:  Mr Navjot Singh
Respondent:  Minister for Home Affairs
Tribunal Number:  2400672

Tribunal:Senior Member L Nicholls
Place:Sydney
Date: 15 November 2024
Decision:The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration, in accordance with an order 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 15 November 2024 at 10:24am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – cultural Dastar Bandi ceremony – previous compliant family visits – property ownership in India – decision under review set aside
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant for the visa (the visa applicant) is a citizen of India and he is 38 years old. The applicant for review (the review applicant) is the visa applicant’s sister and she is an Australian citizen.
The visa applicant applied for a Visitor (Class FA) visa on 10 November 2023. He provided identity and financial documents and written submissions to support the application.
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. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On 24 November 2023 a delegate of the Minister for Home Affairs refused to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 of the Regulations. The delegate was not satisfied that the visa applicant had a genuine intention to stay temporarily in Australia for the purpose of visiting his sister and her family.
The review applicant sought review by the Administrative Appeals Tribunal (AAT) on 17 January 2024. She provided several identity and relationship documents, financial documents, property documents and written submissions.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The review applicant appeared before the Tribunal by MS Teams video on 14 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence by telephone from India, with the assistance of an interpreter in the Punjabi and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Background
The review applicant is 39 years old and was born in Punjab State, India. The review applicant attended school in India and stated that she completed her Bachelor of Medicine and Science degree in India.
The review applicant’s 75-year-old father, the visa applicant, his wife and their two children live in the family home in the Mukerian district in Punjab State.
The review applicant arrived in Australia as the holder of a partner visa and later became an Australian citizen.
The review applicant is married, and she and her husband have three children aged 14 years, 12 years and 7 years of age. She and her husband own and operate a news agency/ post office business in Nowra on the south coast of New South Wales. The family recently moved to Sydney, but they still own and operate the south coast business and visit frequently. She explained that the family had moved to Sydney to give her children greater opportunities.
The visa applicant is 38 years old, is married and he and his wife have two children aged 14 years and 13 years. He is living in the family home in Mukerian together with his wife, children and his 75-year-old father. His mother passed away in February 2024.
He is a farmer and manages a farm producing wheat, rice and sugar cane. He also handles his father’s grain and food commission agency in the local markets.
Purpose and duration of visit
In the present case, the visa applicant seeks the visa for the purposes of visiting his sister and her family. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
The visa applicant is seeking to visit Australia for about two weeks and would stay with the review applicant and her husband in Sydney.
The review applicant stated that her brother’s presence in Australia is of significant cultural and emotional importance to the family particularly for the Dastar Bandi ceremony they are planning for their son. She stated that this ceremony is central to their Sikh heritage and her brother’s participation is important in fulfilling the traditional and familial roles in this rite of passage. In her submissions she stated:
Definition of Dastar Bandi and importance to us
Dastar Bandi is a traditional Sikh ceremony celebrating a significant milestone in a Sikh boy's life, typically marking his coming of age and his formal acceptance of the Sikh turban (dastar).
The dastar, or turban, holds deep spiritual and cultural significance in Sikhism, symbolizing honor, responsibility, and commitment to Sikh values.
In the Dastar Bandi ceremony:
Family and Community Gathering: Family members, friends, and the Sikh community gather to witness and support the boy as he embarks on this new phase of life.
Tying of the Turban: An elder, often a respected family member or community leader, ties the dastar on the young boy's head. This symbolizes the passing on of Sikh values and traditions to the next generation.
Prayers and Blessings: Hymns and prayers from the Sikh holy scripture, the Guru Granth Sahib, are recited, invoking blessings and guidance for the boy's journey.
Celebration: The ceremony is usually followed by a langar (community meal) or a festive gathering where attendees celebrate the occasion together.
Dastar Bandi is more than just a ceremony; it marks a commitment to Sikh principles like honesty, courage, and equality, as well as a pledge to uphold and respect the Sikh identity.
Background and Purpose of the Visit
Our family has a strong commitment to the values and traditions of Sikhism, and the Dastar Bandi ceremony is a pivotal milestone for our son Javin. This ceremony, where Javin will be formally initiated by wearing the turban, is not only a religious rite but also a symbolic gesture that marks his dedication to Sikh principles. In Sikh culture, the maternal uncle, or "Mama," plays a crucial role in performing this rite of passage, underscoring the supportive bond between uncle and nephew and the guidance provided by the extended family. Therefore, my brother Navjot Singh's presence is essential as it represents our family's unity, especially after a recent tragedy.
My father, Mr. Gulshan Singh, and my mother, Mrs. Harjeet Kaur, have always been very fond of my children and cherished the idea of visiting us in Australia to witness our family's growth, achievements, and aspirations. My mother was able to visit me twice in Australia, and she returned each time within the specified visa period. Although my father was granted a visitor visa on two occasions, he could not travel to Australia due to his medical conditions and advanced age. This situation further highlights the importance of my brother's attendance at the Dastar Bandi ceremony, as his presence would have represented our parents' blessings for our son, Javin. If Navjot's visa had been granted, and the ceremony had gone ahead as planned, it would have symbolically fulfilled my parents' desire to participate in our family's significant moments.
The ceremony was originally scheduled for Dec 2023; however, due to my brother's inability to obtain a visa, we had to cancel the event, causing significant emotional strain. This event, now rescheduled for March 2025, also holds additional emotional weight as we plan to host it shortly after the one-year anniversary of our mother's passing. Her absence has deeply affected our family, further reinforcing the importance of uniting as a family during this difficult time.
Travel and migration history
The visa applicant visited Australia in November 2022 and stayed for about three months with the review applicant and her family. She stated that the visit was important because it gave her children the opportunity to develop a closer relationship with their uncle. The review applicant stated that the visa applicant had obtained a sponsored family visa on the last occasion. When asked why he had applied for a visitor visa in the Tourist stream on this occasion, she stated that the sponsored visit visa had taken a long period of time to be finalised and the family thought that a tourist visa may not take as long to process.
Compliance with conditions of last substantive visa.
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)).
The visa applicant stated he had complied with the conditions of his last sponsored visitor visa and the Department’s movements records confirm that the visa applicant held a visitor visa and departed by the end of the permitted stay. There is no evidence before the Tribunal of non-compliance with the conditions of the last substantive visa held, or any subsequent bridging visas.
Intention to comply with conditions.
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.
The review applicant and the visa applicant stated that the visa applicant had no intention of working or studying in Australia and that his only purpose was to visit family and to attend his nephew’s Dastar Bandi ceremony.
Other relevant matters
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
The visa applicant is married with two children aged 14 and 13 years. He is also responsible for the care and support of his 75-year-old father who is in poor health.
The country information indicates that the security situation in Punjab state is generally stable and that the state has a large Sikh population.[1]
[1] DFAT Country Information Report India September 2023 pp 3.94 to 3.102.
With respect to the delegate’s concerns regarding the visa applicant’s economic situation both he and the review applicant explained that he is a farmer and is granted many exemptions in Punjab state because of his involvement in a essential industry. He also shares in the income from his father’s commission agency business and from other real estate assets. His father assists in the financial support of the visa applicant and the visa applicant’s family and the family have assets in Punjab State.
The review applicant and visa applicant both gave evidence they were aware of the importance of compliance with visa conditions and pointed to the previous visit of the visa applicant where he had complied with all conditions and left before the end of the permitted stay. The review applicant also stated that her late mother had visited several times and had departed before her visas had ceased.
Conclusion
Overall, and taking account of the evidence before it, the Tribunal is satisfied the visa applicant has a genuine intention to stay temporarily in Australia for the purpose of visiting his sister and her family. It notes that the applicants have both stated that the main purpose of the visa applicant’s visit will be to attend his nephews Dastar Bandi’s ceremony and the Tribunal accepts that this is an important occasion for the family.
The Tribunal considers the visa applicant’s family ties in India will act as an incentive for the visa applicant to return to India at the end of his visit, that is, ties to his wife, his teenage children and his 75-year-old father.
The visa applicant has travelled to Australia previously on a visitor visa and stated that he complied with all the conditions of his visa and departed before the end of the permitted stay. This evidence is supported by the department’s movements records which show that he visited in November 2022 and departed in February 2023. His previous compliance with visa conditions suggests that he will continue to respect Australia’s migration laws, comply with conditions and leave before the end of any permitted stay.
With respect to his economic situation, the Tribunal notes he has provided tax and business records to show his personal income as well as his ownership of real property in Punjab State. The visa applicant and review applicant gave evidence that the family also receives support from his father’s business interests and that he obtains exemptions on the basis that he is engaged in a farming business which is regarded as an essential industry in Punjab State. While the visa applicant may not appear to have a significant income, the Tribunal does not consider taking account of the other factors set out in this decision that this will act as an incentive for him to remain in Australia past the period of any permitted stay or that he will seek to work while he is in Australia.
The visa applicant is a Sikh and there is no country information which suggests that the Sikh population in Punjab State is at any risk of harm from state authorities or other groups. There is no information that that there are any religious or social conflicts affecting residents of the Punjab State. The Tribunal does not consider that conditions in Punjab State will act as an incentive for the applicant to remain in Australia past the period of any permitted stay.
The applicants both gave evidence that they were aware of the importance of compliance with visa conditions in the short term and the long term. There is no adverse information before the Tribunal which might suggest that the visa applicant will not comply with conditions which would be imposed on any visa which may be granted or that he will remain in Australia past the period of any permitted stay. There is no evidence of non-compliance with previous visa conditions and the visa applicant has given evidence that he will comply with conditions imposed on any visa which might be granted.
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
The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration, in accordance with an order 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.
Date(s) of hearing 14 November 2024
Representative for the Applicant: Mr Vikram Bir (MARN: 0851838)