Waraich (Migration)

[2024] AATA 80

Waraich (Migration) [2024] AATA 80 (5 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Balkaran Pal Singh Waraich

VISA APPLICANT:  Mr Bipanjot Singh Waraich

REPRESENTATIVE:  Mr Harjinder Chouhan (MARN: 0956110)

CASE NUMBER:  2216006

HOME AFFAIRS REFERENCE(S):          BCC2022/2567948

MEMBER:Andrew McLean Williams

DATE:5 January 2024

PLACE OF DECISION:  Brisbane

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 05 January 2024 at 11:35am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – employment, property and care for parents – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 12 October 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 7 July 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 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 these include clause 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay only 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 clause 600.211 because there was insufficient evidence in support of the visa application to show that the visa applicant would be likely to return to India at the end of his trip to Australia.

5. The review applicant and the visa applicant both appeared before the Tribunal on 30 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The review applicant was represented in relation to the review by Mr Harjinder Chouhan (MARN 0956110) of ‘International Visa Advisory’. Mr Chouhan also attended the Tribunal hearing and had arranged for the prior lodgement of documents to demonstrate the visa applicant’s ties to India.

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 clause 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 travelling to Australia for the turban ceremony for the visa applicant’s infant Australian nephew. This is a purpose for which a visa in the Sponsored Family stream may be granted: clause 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 (clause 600.211(a)).

11. The Tribunal has perused and considered evidence of employment in India, as well as property ownership and is satisfied that these factors, along with an enduring obligation to care for parents in India in their retirement are sufficient inducement for the visa applicant to return to India upon the expiry of an Australian visitor visa, if granted. 

12. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (clause 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (clause 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.

13. Having heard from both the visa applicant and the review applicant, the Tribunal is now satisfied in relation to each of the matters identified in the preceding paragraph.

14. The Tribunal has also considered all other relevant matters (clause 600.211(c)) and is amply satisfied that the visa applicant has a genuine intention to stay only temporarily in Australia for the purpose for which the visa is to be granted.

15. 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 clause 600.211 are met.

    DECISION

16. 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:

    ·clause 600.211 of Schedule 2 to the Regulations.

    Andrew McLean Williams
    Member