Walia (Migration) - [2025] ARTA 913

WALIA (MIGRATION) [2025] ARTA 913 (29 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Khushpreet Singh Walia
Visa Applicant:  Mr Love Walia
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2314473

Tribunal:Rosa Gagliardi
Place:Australian Capital Territory
Date: 29 April 2025
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 29 April 2025 at 3:12pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit Australian family member – personal and financial circumstances – no negative visa breach history – satisfied that the visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

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

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 7 July 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 4 July 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 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). 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.
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 intends to stay in Australia for the purpose for which the visa is granted.
The review applicant (Australian citizen) appeared before the Tribunal on 9 April 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who has been invited by the review applicant to visit Australia.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter 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.
In the present case, the visa applicant seeks the visa for the purposes of visiting his brother in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
Background
The visa applicant is a 33-year-old male from the Punjab in India. On 12 September 2019, the applicant first applied for a Visitor Visa which was granted. The applicant’s movement records demonstrate that he returned to India prior to the expiry of his visa on 25 January 2020, and there is no indication the applicant breached his visa conditions. A second application for a Visitor visa was lodged on 25 April 2022 but this prompted a string of refusals (six), the reasons for which appeared to contradict the circumstances in which the first visa was granted to the applicant.
One the of the refusals involved an application for a Sponsored Family Visitor visa in which the review applicant was prepared to pay a substantial amount in security to demonstrate that the visa applicant genuinely intended to stay in Australia temporarily for the purpose for which the visa was granted.
When the review applicant applied for his brother to visit on the third and fourth occasion, their father happened to be visiting Australia on one of his many trips here and suffered an adverse medical event. The purpose of having the applicant come to Australia was to support his brother during a difficult period when the review applicant needed support given the critical illness of their father. The visa was refused. His mother has also travelled to Australia to see the review applicant on multiple occasions.
It is noted that on each occasion the applicant applied for his Visitor visa his financial situation had actually improved, and again this appeared to be inconsistent with the grant of the visa in 2019, when the applicant was yet to establish himself professionally and financially.
The Department previously also argued that the applicant did not have strong family ties in India, despite having aged parents and a disabled brother in India.
cl.600.211(a)
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)).
As noted, the applicant when he was younger and somewhat less well-established in India was granted a visa and complied with the attached conditions. Had the applicant sought to permanently migrate to Australia he could have done so when his parents were not as elderly and in need of assistance, and when as a younger person he could have started his life over in a new country.
The Tribunal places weight on the applicant’s previous favourable migration history in Australia. It also places weight on the applicant’s parents’ positive migration history in abiding by their conditions and returning to their home country within the limits of their visas. It was not lost on the visa applicant and the review applicant that were the visa applicant to breach his visa conditions this would compromise their parents’ ability to travel to Australia as freely as they have.
The Tribunal is satisfied that the applicant meets cl.600.211(a). In this regard the Tribunal also places weight on the brothers’ credibility and persuasive evidence that the visa applicant genuinely only intends to stay in Australia temporarily.
cl.600.211(b)
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:
·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.
The Tribunal is satisfied that the applicant is not coming to work in Australia. The evidence submitted demonstrates that he is working (and has been working) in India and that currently he is working as the Operations Head with GPRS Logistics India. The applicant started in this position on 3 October 2023. His letter of offer indicates the applicant’s base salary would be INR 1,08,000/- per month (the equivalent roughly of AUD$1,975.90) and that annually this equates to about AUD$23,713.93. Pay slips have also been submitted reflecting the applicant earns the claimed INR 1,08,000 per month.
The Tribunal appreciates that the applicant could earn significantly more in Australia even in some low skilled job. Nonetheless, the applicant is in a managerial role in India attracting social status and given he owns his home, his financial circumstances in India are solid. At 33 it is not plausible that the applicant would start studying or working in Australia in a low skilled job.
Furthermore, the applicant has also submitted a balance certificate of his bank account holdings being INR 11,00,467.72/-, (equating to approximately AUD$20,240.12) which is a considerable sum to have in reserve in any currency, especially as the applicant does not have a mortgage.
A letter by the applicant’s employer has also been provided dated 9 April 2025, confirming the applicant had been at the company since 3 October 2023 on a full-time basis, as an Operations Head at GPRS Logistics India. The letter states that the applicant, “has expressed his interest in visiting Australia for a personal family reunion. Our company has no objection regarding his visit to Australia for 21 days and that they had approved leave from 11 May 2025 to 31 May 2025”. This letter demonstrates that the applicant has discussed his potential absence with his employer, that the period he would be away would be confined and that the applicant can return to his position on return from Australia.
cl.600.211(c)
The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal has also had regard to the evidence demonstrating that the visa applicant’s older brother in India has an intellectual disability as well as a mental illness. The review applicant and the visa applicant spoke convincingly at hearing of the applicant playing an important role in the care of his brother and that as his parents entered their later years, the applicant’s role in the life of his brother in terms of managing him and ensuring he is cared for adequately, will rest on the visa applicant. The Tribunal places weight on this affective tie which the Tribunal is satisfied represents a significant motivation for the applicant to return to his home country and home area on completion of the visit in Australia.
In addition, the Tribunal notes that the review applicant was married but is now on his own in Australia and indicated that having a family member here would alleviate some of the isolation he was experiencing and would provide him with some short-term family companionship.
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 of hearing: 9 April 2025
Representative for the Applicant: N/A