Vaghela (Migration)

[2024] AATA 3084

Vaghela (Migration) [2024] AATA 3084 (23 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sahdevsinh Babuji Vaghela

VISA APPLICANT:  Mr Jitendrasinh Babuji Vaghela

REPRESENTATIVE:  Mr Andrew Wun Nam Au

CASE NUMBER:  2306597

HOME AFFAIRS REFERENCE(S):          BCC2023/2292863

MEMBER:Anne Grant

DATE:23 July 2024

PLACE OF DECISION:  Melbourne

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 23 July 2024 at 9:07am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting family – employment and financial circumstances – young family – strong family and personal ties in India – employment and business and financial ties in Lebanon – 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 4 May 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 is a citizen of India, and 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 Sponsored Family 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 visa applicant genuinely intended a temporary visit for the purposes of the visa.   

5. The review applicant appeared before the Tribunal on 17 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, by video from India. The hearing was assisted by an interpreter in the English and Hindi languages. 

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visit his brother, the review applicant and sponsor. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

10. 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)).

11. The visa applicant has not previously visited Australia.  However the review applicant gave evidence that he and his wife have sponsored a significant number of relatives, including his his father (before his father died) and many of his wife’s family to visit Australia.  On every occasion the sponsored visitors complied with the conditions of their visa and departed Australia in accordance with the visa terms.  The visa applicant stated that he was aware that if he failed to comply with the terms and conditions of the visa, if granted, his brother would probably face significant difficulty sponsoring other members of their family in future, and stated that he would comply with the conditions of the visa, if granted. 

12. The review applicant’s mother applied for a visitor visa at the same time as the visa applicant and was granted a visitor visa.  However according to the applicants, it was intended that she travel with the visa applicant due to lacking confidence to travel alone, so she has not yet travelled to Australia.

13. I give the migration, visa compliance and travel history of the review applicant and his family favourable weight as suggesting that the visa applicant genuinely intends to visit Australia temporarily. 

14. 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 600.612):

    ·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.

15. In the application, the visa applicant stated that he did not intend to work or study whilst in Australia.  At hearing, he confirmed that he would be sure to comply with the terms of the visa. He has no intention of working or studying in Australia, and his brother confirmed that he would meet all of his costs, including buying the plane tickets for he and his mother.   

16. The visa applicant confirmed that he intends to depart Australia within the terms of the visa. He has to return to India to his family and his work.  At the time of application, the visa applicant was working in employment for a diamond company.  He confirmed (as his bank account suggested) that he stopped working for that company in early 2023, because at that time, he commenced running the family agricultural farm in Dabhadi.  They farm cotton, wheat and vegetables.  Previously, the farm was run by someone else, and so the family only received a small portion of the proceeds of the crops.  But now, the visa applicant is running the farm, and so they receive all of the profits.  The income is around 3 – 4 Lakhs  (300,000- 400,000 Indian rupees) per annum.  The visa applicant said that he currently has around 3 or 4 lakhs in his bank account and undertook to send in an updated bank document. 

17. On 23 July 2024 the Tribunal received a bank statement for the visa applicant’s BOB account dated 22 July 2024 which demonstrated a balance of 469600 rupees.  Also provided was a statement from the visa applicant’s mother’s account which demonstrated a balance of 158267 rupees.  I am satisfied that the visa applicant has significant employment, financial responsibilities and income which is dependent on his own labour in India which would provide him with a strong incentive to return to India at the end of a permitted stay period in Australia.    

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

19. The visa applicant has a wife and two young children in India, and he supports and cares for his mother, who lives with them.  At hearing, the parties confirmed that they also have three married sisters who live close by to the visa applicant.  The review applicant (and his family) is the only family that the visa applicant has in Australia.    

20. The review applicant owns a franchise of a 711 store and I am satisfied that he has the financial means to support the visa applicant for the length of any stay in Australia.  The review applicant has offered to pay a security deposit of $20,000 and I give this some weight as suggesting that he genuinely believes that his brother will comply with the visa conditions. 

21. I consider that the family visa history, the visa applicant’s employment and financial circumstances, and the visa applicant’s young family, provide him with a strong incentive to return to India at the conclusion of the permitted visa period.  I accept his evidence that he genuinely intends to visit with his mother to see his brother and that he will comply with the conditions of the visa, if granted. 

22. I have had regard to the applicant’s circumstances and the various relevant factors in this case, as outlined above.  I am satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and find 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.

    Anne Grant
    Member