Sukhjit Singh (Migration)

[2024] AATA 3139

Sukhjit Singh (Migration) [2024] AATA 3139 (15 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sukhjit Singh

VISA APPLICANT:  Mrs Surinder Kaur

REPRESENTATIVE:  Mr Amit Joshi (MARN: 1678680)

CASE NUMBER:  2307227

HOME AFFAIRS REFERENCE(S):          BCC2023/2646515

MEMBER:Jane Marquard

DATE:15 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 15 August 2024 at 6:58pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – substantial compliance with last visa – intention to comply with visa conditions – other relevant matters – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The review applicant, Mr Singh, has sought review of a decision made by a delegate of the Minister for Home Affairs on 16 May 2023 to refuse to grant the visa applicant, Mrs Kaur, who is his mother, a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND TO THE REVIEW

2. The visa applicant, Mrs Kaur is a woman from Punjab, India.

3. She applied for the visa the subject of this review on 3 May 2023 to visit her son in Australia.

4. The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

5. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   SUMMARY OF RELEVANT LAW

6. 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 visa applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

7. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

8. Relevantly to this case, a criterion for the visa is cl 600.211 of Schedule 2 to the Regulations, 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.

   EVIDENCE CONSIDERED

9. The Tribunal has taken into consideration the application to the Department and supporting documents, as well as new submissions to the Tribunal.

10. No Tribunal hearing was necessary in this matter as the Tribunal was able to determine the matter on the papers before it.

    FINDINGS AND REASONS

11. The key issue in this case is whether cl 600.211 of Schedule 2 to the Regulations 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.

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

    Purpose of visit

13. The visa applicant has applied to travel to Australia to see her son. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231 of Schedule 2 to the Regulations.

    Substantial compliance with last visa

14. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, 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) of the Regulations).

15. The visa applicant has travelled previously to Australia on two occasions. She travelled to Australia in 2007 for three months and in 2017 for three months with an extension granted. She complied with the visa conditions on her last substantial visa. This is given significant weight in a determination whether she genuinely intends to stay temporarily for the purpose of a visit.

    Intention to comply with visa conditions

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 Regulations). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.612 the Regulations):

    ·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.

17. The review applicant in a Statutory Declaration dated 27 March 2023 stated that the sole purpose of his mother’s visit was to spend time with him and do some sightseeing. He has promised that she will abide by visa conditions. She requested a trip for three months.

18. Taking into consideration the various issues discussed in the ‘other relevant matters’ below, and the fact that the visa applicant complied with visa conditions on her previous visas, the Tribunal is satisfied that she intends to comply with conditions to which the Subclass 600 visa would be subject. She did not work or study on previous occasions, or overstay her visa, and she does not speak English.

    Other relevant matters

19. The Tribunal has also considered other relevant matters (cl 600.211(c) the Regulations).

20. Firstly, the Tribunal has considered the purpose of the visit. In a Statutory Declaration dated 27 March 2023 the review applicant said that his mother wished to visit as they had not seen each other for some time and wanted to spend some quality time with him and his two sisters and do some sightseeing. In a Statutory Declaration dated 26 July 2024 he said that he was heartbroken when the visa application was refused by the Department and the purpose of her visit was solely to see family and sightsee. The Tribunal accepts that this purpose accords with an intention to stay temporarily.

21. Secondly the Tribunal has considered the incentives to return to India at the end of the visit considering it may be appealing or the visa applicant to reside with her son and two daughters in Australia. The visa applicant provided evidence of funds in a SBI Mutual Fund amounting to $12, 675 in March 2023. This information was updated for the Tribunal review. Evidence was provided of savings of an amount equivalent to $ 11 263 in the State Bank of India savings account, and of $2261 in a Canara Bank Savings account. Also provided were valuations for the residential property and gold jewellery owned by the visa applicant. She said that she is a housewife in India. While the financial incentives are not highly persuasive, the Tribunal notes that the visa applicant’s other daughter lives in India with her family. Further, the review applicant said in a Statutory Declaration dated 26 July 2024 that his mother is 61 years old and lives in her own house, with agricultural land of approximately 2,25 acres. They rent the land and receive rental income. For a woman of this age, and who does not speak English, having her own home, community, family members and income, does comprise a significant incentive to return to India at the end of her trip. Furthermore, a significant incentive for her to comply with laws of Australia is her wish to visit on future occasions, which would be prejudiced were she to breach any visa conditions.

22. Thirdly, and importantly the Tribunal has taken into consideration the fact that the visa applicant has travelled twice previously to Australia and always complied with visa conditions.

23. Fourthly, the Tribunal has taken into consideration the apparent good character of the applicants. The review applicant came to Australia on a Skilled Nominated (Subclass 190) visa. He is an Australian permanent resident and currently works as a Product Inspector for Red Earth Farms in South Australia. A letter from the Director of Red Earth farms dated 25 July 2024 confirmed his employment for Red Earth, which owns and operates four farms. He said that the review applicant fulfills his duties with great focus and has been a strong part of the team and his work ethic was valued.

24. There is no evidence that the review applicant has not complied with visa conditions and Australian laws. He has stated that he ‘declares and promises’ that his mother would leave before the visitor visa expires. He also provided an assurance that he took full responsibility for obligations to abide by conditions. He said that he fully understood that any breach of the tourist visa conditions would prevent him from being a sponsor for five years. Submissions were made about his character. He is an active member of the community, regularly visiting the Sikh Temple and ‘always ready to help needy people’. A character reference was provided from the Secretary of the Riverland Singh Society attesting to his character. The Secretary said that review applicant has high integrity and strong moral character. He participates in various volunteer activities and demonstrates a willingness to help others. The Tribunal accepts that the applicants are of good character given compliance with Australian law in the past.

25. Fifthly, the review applicant in a Statutory Declaration dated 26 July 2024 has declared his willingness to provide surety to guarantee the return of his mother to India at the end of the visa period. This willingness indicates confidence that she will return according to the terms of her visa.

26. Considering these factors cumulatively, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily for the purpose of a visit with her family members. The Tribunal has given particular weight to the fact that the visa applicant has travelled to Australia on previous occasions and complied with visa conditions.

    Findings on genuine intention to stay temporarily in Australia

27. For the above reasons considered cumulatively, 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

28. 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.

    Jane Marquard
    Member