1514565 (Migration)

[2016] AATA 3759

1514565 (Migration) [2016] AATA 3759 (27 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sabina Rai

VISA APPLICANT:  Ms Manju Kumari Malla

CASE NUMBER:  1514565

DIBP REFERENCE(S):  P15/09032219

MEMBER:Meena Sripathy

DATE:27 April 2016

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 27 April 2016 at 1:43pm

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 Immigration on 19 October 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 12 October 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 the delegate was not satisfied that a genuine visit was intended, having regard to the visa applicant’s circumstances of being retired and having limited personal and financial ties which would encourage her to return to her home country.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application form contains the following information: the visa applicant is the 60 year old mother of the review applicant.  She is a widow. She has three daughters and one son in Australia.  She applied for the visa to visit Australia for a period of 12 months to provide support to her youngest daughter who was due to give birth to her first child in August 2015 and to celebrate the Hindu festivals of Dashami and Deepawali with her children and grandchildren in Australia.  Various documents were provided in support of the application, including a letter of financial support from the review applicant, family relationship certificate, birth certificates of the visa applicant’s children, visa applicant’s Nabil Bank statement indicating her available balance, property valuation, letter from the Pension Management Office confirming her pension and bank statement indicating monthly pension deposits. 

7. The review applicant provided a submission with the review application setting out further details of her and the visa applicant’s circumstances and addressing concerns referred to by the delegate in the decision record. She referred to the visa applicant having applied for a Parent Visa application prior to lodging the present application to demonstrate that she would never jeopardise her future to come to Australia to visit her children and grandchildren by overstaying her visa.  She only wishes to visit her children from time to time and has no desire or intention to remain her beyond the period of the visa. The review applicant also indicated her willingness to provide a bond to guarantee her mother’s compliance with visa conditions. She explained that she was visiting her mother in Nepal in April last year when the devastating earthquake hit the country and was very worried for her mother at that time.  Therefore she and her siblings applied for her mother to visit but the applications were repeatedly refused. Since then the situation in Nepal has changed and stabilised and the review applicant states her mother’s house has been certified as safe by an engineers report.  She owns her house in Kathmandu.  She has regular and sufficient income from her pension and rental income from leasing two flats on her property.  The visa applicant has 4 sisters who live closeby to her in Kathmandu.  She lives with her niece in her house. She is presently preparing her house for the wedding of her son, which is hoped to be held around December this year.  The review applicant argues that her mother has a stable and confortable life in Nepal and intends to return to it following her visit. She just wants her mother to come to Australia to see her new baby and to give her some moral support.

8. The review applicant appeared before the Tribunal on 26 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

9. The Tribunal discussed with the review applicant her background and circumstances, her family composition and the migration histories of her family members in Australia, and the circumstances of the visa applicant. The Tribunal also took oral evidence from the visa applicant by telephone. Relevant details given in their evidence is discussed further below. The applicants’ answered the Tribunal’s questions in a direct and straightforward manner and their oral evidence was substantially consistent.  In the absence of any other inconsistent, contradictory or adverse information, the Tribunal finds the applicants to be credible and honest witnesses and accepts their evidence on this basis.    

10. 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.

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

12. 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)). The visa applicant has travelled to Australia on three occasions in the past on subclass 676 Tourist visas in 2007, 2009 and 2011 and stayed for one year each time.  She departed within the period of the visas each time.  On the basis of the evidence of departmental records and the oral and written evidence before it the Tribunal accepts that the applicant has complied substantially with the conditions of the last, and all, substantive visas previously held.

13. 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 and 8201 – must not engage in study or training in Australia for more than 3 months.  Conditions 8501, 8503 and 8558 (must not stay more than 12 months in any period of 18 months) may be imposed.

14. The Tribunal accepts, on the documentary and oral evidence, that the visa applicant is 60 years old and a retired Lieutenant in the Nepalese Army since around 2000.  Given her age and circumstances it is not concerned that she would not comply with the no work and no study conditions.  It discussed with the review and visa applicants its concern that she may feel pressured to remain longer than the visa period given her children’s emotional and practical needs for support or assistance with childcare.  In response the review applicant made clear that she has no intention of requiring her mother to provide childcare for her baby.  She and her husband have managed between them with their flexible work arrangements to date. She indicated that her mother is older now and would not be able to provide that level of childcare anyway.  She acknowledged that her mother had in the past helped her sister’s with their children, but that was some years ago. She also pointed out that she left within the period of the visa on every previous occasion. The review applicant was adamant that her mother would not stay longer than permitted because they would not jeopardise her ability to visit again in future.  She has no desire to reside on a long term basis in Australia at this time, she only wishes to be able to come and go to see her children and grandchildren. 

15. The Tribunal has also considered all other relevant matters (cl.600.211(c)). On the basis of the oral evidence and documents before it, the Tribunal makes the following findings.  It accepts that the visa applicant is a widow and lives in her own house in Kathmandu, Nepal. She resides with her niece, who is 20 years old. The review and visa applicants gave different evidence about whether she also resides with one of her sisters on an ongoing or temporary basis.  The visa applicant stated that one of her sisters lives with her, together with her daughter, whereas the review applicant had not mentioned this in her evidence.  When commenting on this inconsistency, the review applicant explained that her aunty sometimes stays with her mother in Kathmandu, when she is not in the village but she also goes back to the village from time to time. Ultimately the Tribunal does not consider this a critical matter, and it is prepared to accept that she has a number of siblings and other extended relatives close by in Kathmandu with whom she has ongoing and regular contact.  The Tribunal accepts that the applicant has a regular pension income from her former position in the Nepalese Army and that she also has rental income from leasing flats in her property, and that she is financially comfortable.  The visa applicant told the Tribunal she has close family and social ties in Nepal and that because of her age and circumstances she prefers to live permanently there at this time.  She has lodged an application for a Parent visa recently so that she can more easily come and visit her children in Australia but does not have a short term intention to reside there on a more permanent basis. 

16. The Tribunal has also carefully considered Departmental policy in relation to applications for visitor visas for parents of Australian residents.[1] This policy states that the existence of a permanent migration application and, if follows, an obvious intention to eventually reside permanently in Australia, are not grounds to find that the applicant does not meet the genuine temporary stay requirement and the focus should be on the parent’s short-term intentions. The Tribunal also notes that the policy encourages a flexible approach to visitor visa applications made outside Australia by parents of settled Australian citizens and permanent residents even in circumstances where the parents have not yet applied for, or do not intend to apply for, parent migration. Policy encourages officers to consider granting parents who have a history of compliant travel to Australia a Tourist stream visa with three-year travel period, 12 month stay and multiple entry so the parent can visit their family for longer periods on regular occasions. Having regard to this policy, which is not strictly binding on the Tribunal, the Tribunal accepts in the present case that the lodgement of a Parent visa application by the visa applicant is consistent with the applicants’ oral evidence that the visa applicant has no intention in the short term of residing here, but that she would like to be able to easily come and go in future to see her children and grandchildren, and that she has a history of compliant travel to Australia. The Tribunal also takes into consideration that the pending Parent visa application is a demonstration of the visa applicant’s commitment to follow appropriate pathways for a more permanent option for migration in future and its eventual successful outcome is a further incentive to encourage compliance by the visa applicant with visa conditions. 

    [1] PAM3: GenGuideH Visitor visas Visa app​lication and related procedures

17. For all of 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

18. 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.

    Meena Sripathy
    Member