Ghimire (Migration)

[2021] AATA 664

Ghimire (Migration) [2021] AATA 664 (11 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Bijay Ghimire

VISA APPLICANT:  Bikash Ghimire

CASE NUMBER:  1825961

HOME AFFAIRS REFERENCE:               BCC2018/2662638

MEMBER:Lilly Mojsin

DATE:11 February 2021

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 11 February 2021 at 9:02am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s family ties – successful business in Nepal – property ownership – pervious compliant family visits – applicant joined the French Foreign Legion – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.212, 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 3 August 2018 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 16 July 2018. 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 the delegate was not satisfied the visa applicant intended a genuine visit.  

5. The Tribunal hearing was held during the COVID-19 pandemic. The review applicant appeared before the Tribunal, via Teams Video, on 16 December 2020 to give evidence and present arguments.  The visa applicant did not appear before the Tribunal as the visa applicant was living in France and had joined the French Foreign Legion.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The delegate was not satisfied that the visa applicant intended a genuine visit to Australia because the visa applicant had not demonstrated that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

7. The delegate found that the visa applicant had not indicated the presence of any family members or dependent family members in Nepal that will induce him to return within the validity of his visa and as he had one brother in Australia, the applicant’s family ties were not sufficient to demonstrate that the applicant intends a genuine temporary stay in Australia. Further, the applicant declared that he has been self-employed since 4 July 2014 as the owner of Simran Pharma. The applicant provided minimal evidence of the scope or scale of the business as well as evidence to show that it is ongoing or profitable enough to act as an incentive to return to Nepal and encourage the applicant to depart Australia at the end of the proposed period and may not comply with his visa conditions.

8. The review applicant submitted to the Tribunal on 5 September 2018 that his brother had applied to visit Australia for his daughter’s 5th birthday and attend a party organized on 26 July in a function center in Rockdale with about 100 attendees. He stated that they had submitted all required and relevant documents that showed his brother is running a successful business along with his father and is a registered pharmacist in Nepal.

9. On 16 July 2018, the visa applicant reapplied for a sponsored stream visa, and signed a declaration that he would bear all costs and would be fully responsible to send his brother back when his visa runs out as he had always done in the past with other visas granted to his visitors.

10. The review applicant wants his brother to come and visit in Australia so that he can be present at the festival of Dashain starting from 10th October 2018. His father is here in Australia, helping to look after their daughter. Dashain is a festival where all the family members come together. But given the nature of their jobs, they cannot afford to go to Nepal, this time. Since his mother passed away last year [2017], this was a first ever family gathering for his daughter’s birthday.

11. Regarding the visa applicant’s finances, they should not carry any weight because the review applicant opined that he will take full responsibility and has declared this in the most recent application as well. The visa applicant will stay with the review applicant after arriving in Australia and the review applicant will pay for all his expenses coming to and leaving the country, including all the visa applicant’s living and medical expenses he may or may not incur.

12. At the Tribunal hearing, the review applicant stated that in regard to his family in Nepal, his father is 63 years of age and he works. The family has shares in businesses and receives money. He owns his own home. His brother had stakes in pharmacies where he was a proprietor. He is a registered pharmacist, having registered in 2018. He studied in Nepal. He is single and has no children. The review applicant came as a student to Australia, he was married before he came. He is a citizen of Australia and has 2 children. He works as a disability support worker. His wife used to work, and she hopes to return to work. His brother’s trip to Australia will be paid by his brother, he should be able to manage that but he does not have current savings.

13. In relation to the visa applicant’s intention to visit was for his daughter’s birthday. He only wanted to come for a few weeks. Then when his father was in Australia, they wanted his brother to come for cultural reasons for a month. All the people he has sponsored have always returned on time i.e. his mother, his father twice, his father-in-law and his mother-in-law and sister-in-law.  

14. The visa applicant’s incentive to return to Nepal was because he had a girlfriend and he is going back to Nepal, even though he is now in France. He has a good job and good money. He got into frustration about all of this.

15. He has joined the army in France. He went to do a Masters in France but has now joined the French Army. He has not finished his training yet. He hopes to travel to visit his family when he is entitled to leave.

    REASONS AND FINDINGS

16. The issue in this review is whether cl.600.211 is met, requiring 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.

17. The Tribunal considered the oral evidence of the review applicant and the evidence provided in support of the application.

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

19. 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)).

20. The visa applicant has never been the holder of an Australian visa. There is no evidence before the Tribunal to suggest that the visa applicant has not complied substantially with that visa. The Tribunal places weight on this factor in its assessment of this application.

21. 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.

22. The Tribunal acknowledges that family members often wish to share their experiences in Australian with other family members from their home countries.

23. The Tribunal notes the visa applicant's family ties in Nepal. The visa applicants’ father currently resides in Nepal and he has returned after a visit to Australia. The Tribunal notes that the review applicant and his family live in Australia. The review applicant and his wife have 2 children and are Australian citizens. The review applicant stated that the visa applicant is close to his daughter. The Tribunal is satisfied that the visa applicant’s Australian family ties would act as a strong incentive for him to remain in Australia after the end of a permitted stay and the Tribunal places weight on those family ties.

24. The Tribunal accepts the evidence of the review applicant that he would pay the costs of his brother's travel to Australia and meet the costs incurred during his stay.

25. The Tribunal places weight on the visa applicants' father, mother-in-law, father-in-law and sister-in-law complying  with their visas whilst in Australia, and the fact that the review applicant is an Australian citizen with no adverse migration history and he appears to be of good character, and has acknowledged the importance of abiding by laws of a country and his desire to bring out other family members, which would encourage him to ensure that the visa applicant complied with his visa conditions.

26. At the time of application, the visa applicant did not have a job in Nepal and he had limited resources, being an interest in a pharmaceutical and he does not own any land or have a family other than his father in Nepal. The Tribunal does not accept that the visa applicant has an incentive to return to Nepal.

27. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The visa applicant currently lives in France and has joined the French Army i.e. the French Foreign Legion.  The review applicant provided a photograph of the visa applicant in a French Foreign Legion uniform, a copy of the visa applicant’s French visa issued for a student visa valid until 23 September 2020, a flight ticket to France – one way and an Offer Letter 10 July 2017 for the visa applicant to study an MBA from 23 September  2019 to 30 June 2020.

28. Independent evidence[1] indicates that a legionnaire joins for 5 years, is paid a salary, has 45 working days per year vacation and with permission is able to travel abroad. A legionnaire is able to apply for French citizenship after 3 years service. 

    [1]

29. The Tribunal places great weight on the visa applicant’s current recruitment into the French Foreign Legion. The Tribunal accepts that the visa applicant will be required to obtain official permission from the French Foreign Legion to travel to Australia during his 5-year contract. On balance, the Tribunal accepts that the visa applicant has an incentive to return to France where he has a job and a career.

30. 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

31. 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.

    Lilly Mojsin
    Member