Toor (Migration)

[2024] AATA 250

Toor (Migration) [2024] AATA 250 (3 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Gursewak Singh Toor

VISA APPLICANT:  Mr Daljeet Singh Toor

CASE NUMBER:  2217731

HOME AFFAIRS REFERENCE(S):          BCC2022/4990361

MEMBER:Melissa McAdam

DATE:3 January 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 03 January 2024 at 9:01am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – past compliance with visa conditions – immigration history – intention to comply with visa conditions – No Work condition – No Study condition – other relevant matters – presence of close family members in home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 2 December 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 applied for the visa on 23 November 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 the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

   Visa application

4. The visa applicant is the brother of the review applicant.  The review applicant is an Australian citizen.

5. The visa applicant provided the following information in his visa application:

   a.He is a citizen of India, born in 1968.

   b.He wants to visit family in Australia for two weeks.

   c.He is married.  He has a one year old child in India. His partner and his father are also in India.

   d.He has previously travelled to Australia on a Tourist visa.

   e.He works as a farmer in India

   f.He will fund his travel to Australia himself through his savings. The review applicant will provide him with living expenses while the visa applicant is in Australia

6. With his visa application the visa applicant provided the following document copies:

   -The visa applicant’s Indian Birth Certificate

   -The visa applicant’s Indian National ID (Aadhar) Card.

   -The visa applicant’s Indian passport.

   -The visa applicant’s Bank Account statement.

   -The review applicant’s Australian Tax Return.

   -Sales dockets for the visa applicant’s sales of grains and other farm produce.

   -A letter of grant of a Visitor visa to the visa applicant dated 22 February 2022.

   -A Malaysian e-Visa in the visa applicant’s name.

   -The visa applicant’s Vehicle registration Certificate.

7. The delegate refused to grant the visa on the basis that the visa applicant had not demonstrated sufficiently strong commitments in India that would be an incentive for him to return to India.

   Review information

8. The review applicant provided the following additional materials to the Tribunal:

   -The visa applicant’s child’s Indian Birth Certificate.

   -Pages from the visa applicant’s passport showing entry and exit stamps to Malaysia.

   -A Singapore e-Visa in the visa applicant’s name.

   -A UAE visa in the visa applicant’s name.

   -A letter from the visa applicant.

   -The visa applicant’s current Indian National ID (Aadhar) Card.

   -A letter from the review applicant.

   -Updated bank account records for the visa applicant’s bank account.

   -Updated bank account records for the review applicant’s bank account.

   -A property transfer in the visa applicant’s name.

   -A valuation Certificate for land in the visa applicant’s name.

   -The visa applicant’s Income Tax Return papers.

9. In his letter the visa applicant writes:

   …  I am married to Rupinderpal Kaur Toor since 2014 and we have one son Nivaaz Singh Toor who is one year old. As a profession, I am a farmer and got a small dairy farm business. My wife is a school teacher and teaching at B. B. S. B. Convent School since 2016. I live in joint family with my parents Amarjeet Kaur Toor (Mother) and Bhagwan Singh Toor (Father), me
   and my wife look after them due to their age. My father is 88 years old and have some health issues including heart disease and diabetic which require routine care and routine check-ups every 3 monthly and I am the only person who takes him to his checks up and arranges medications accordingly. My mum also had knee problems and cannot walk long distances and advised by Doctor to have knee replacement but she does not want to have the surgery due to her fear.

   I have 2 full time employees to assist me with daily activities of farming and I have to hire extra
   personnel every season which is every six months when crop changeover happens. I harvest wheat in April and planting of Rice takes place in June. According to the season, State Government set the price accordingly and pass onto agents. I sell my crop to agents and gets the payment direct to my account. I also have 4 cows and sell their milk to gain some extra payment to cover daily expenses as I get the payment for that monthly in cash.

   My brother applied for my visitor visa in Nov 2022 and got refused in Dec 2022 due to clause 600.211 in Schedule 2 of the Migration Regulations was not satisfied. As stated in the decision that applicant does not have strong commitments to return back; I would like to put pressure on this thought as I do have strong commitments as I own agriculture business for which I have provided sufficient documents such as sales voucher (J forms) and I am able to support myself with same. As mentioned in the decision that I do not have regular income, I would like to explain that income from this business is not monthly based; it’s seasonal business in which changeover of crops happen every six months. As I am in Northern India and people here grow Rice and wheat and both crops take 3 – 4 months seeding/planting to harvesting. I do have two regular employees working with me and I hire extra labour during seeding/planting and harvesting times.

   I do have a good travel history as I have visited to Singapore, Malaysia and UAE and complied with visa conditions; also visited Australia in 2022 and came back according to my visa conditions without breaching any visa condition.
   My wife (Rupinderpal Kaur) and Son (Nivaaz Singh) also visited my brother and his family in Feb 2023 and came back by complying visa conditions.

   And to be honest, I have no intention to breach any visa condition as I am aware of the consequences that I/my brother have to face and I/my brother will never do this.

   I have attached recent my recent income proof and bank statement for my business and savings account. Recently I bought a new car … worth of AUD 17000; I am also attaching documents such as marriage certificate, property and evaluation documents….

10. In his letter the review applicant writes (additionally):

    …  As a profession, I am a Bus Driver in Berrima Buslines and Ramandeep is a Registered Nurse in Harbison Care Burraddoo.
    …
    I am taking full responsibility for all costs that will incur from his arrival till his return such as travel, accommodation, health insurance, daily activities. I am also happy to pay any bond money to the department if required and take full responsibility of not breaching any visa condition. I would like my family to keep me visiting on to participate in my life achievements, So, me and my brother will never breach any visa condition as we know the consequences of breaching terms and conditions.

    As a proof, below is the list of people whom I sponsored, and no one breach any visa conditions –
    Amarjeet Kaur Toor – DOB 15.05.1960 (Mother) – VGN – 1060112271150C, VGN – 8269553721581, VGN
    - 1069584984085
    Bhagwan Singh Toor – DOB 08.12.1945 (Father) – VGN – 8269553721578, VGN - 1069584984081
    Gurmeet Singh Toor – DOB 08.03.1990 (Brother) – VGN – 8269553721580
    Mahinder Kaur – DOB 01.01.1943 (Grand-mother)– VGN – 1069552961427
    Davinder Kumar – DOB 22.12.1985 (Friend) – VGN – 1329563531251
    Rupinderpal Kaur Toor – DOB 05.11.1991 (Sister-in-law) – VGN – 1859584831088
    Nivaaz Singh Toor – DOB 22.02.2022 (Nephew) – VGN – 1069585420699
    …

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

12. 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.

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

14. 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)).

15. According to the Department’s Movement Records the visa applicant has held one substantive visa in Australia. This was a Visitor visa granted to him on 22 February 2022.  Conditions 8101, 8201, 8503 and 8531 were attached to the visa.  There is no indication before the Tribunal that the visa applicant breached any of these visa conditions.  On the information before it the Tribunal accepts that the visa applicant complied with his visa conditions while in Australia.   The visa applicant travelled to Australia on the Visitor visa on 4 April 2022.  The visa allowed him to remain in Australia until 4 July 2022.   According to the Department’s records the visa applicant departed Australia on 2 July 2022, before his visa ceased.  The Tribunal gives these factors substantial weight in the visa applicant’s favour.

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 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.

17. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The Tribunal also accepts that he has access to sufficient personal savings to support himself during a visit to Australia. The Tribunal is therefore satisfied that he does not intend to work while in Australia.

18. There is no evidence or indication that the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied he intends to comply with Condition 8201.

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

20. The Tribunal accepts that the visa applicant’s wife, one year old child and parents all live in India. The Tribunal considers that the presence of these close family members in India represents significant inducement for the visa applicant to return there.

21. The Tribunal also accepts that the visa applicant has an interest in the care of his elderly parents and would be motivated to return to India to continue to oversee arrangements for their care.

22. The Tribunal gives favourable weight to the good immigration history of the review applicant and other relatives in Australia.

23. The Tribunal accepts that the visa applicant has an established and stable occupation as a farmer in India and that he is well able to support himself and his family from the sale of his  farm produce. The Tribunal accepts the visa applicant employs two regular staff as well as casual staff during harvest times. This indicates that the visa applicant’s farm requires his supervision and oversight so that he would need to return to it after a short stay in Australia.

24. The Tribunal accepts that the review applicant has other close family members in India who could visit Australia in the future. It would therefore be important to him and the visa applicant to consolidate a good compliance record by the visa applicant so as not to create any obstacles for other family members to visit Australia in the future. The Tribunal considers this motivation for the review applicant and the visa applicant to ensure the visa applicant complies with his visa conditions and departs Australia before his Visitor visa expires.

25. The Tribunal accepts the evidence that visa applicant owns property in India and that he has a reasonably stable, established and financially secure life in India, with no apparent economic motivation to live outside of India. 

26. In the Tribunal’s view the incentives for the visa applicant to return to India outweigh any reasons for him to remain in Australia past the expiry date of a Visitor visa. 

27. 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

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.

    Melissa McAdam
    Member