Khakurel Subedi (Migration)

[2023] AATA 1085

Khakurel Subedi (Migration) [2023] AATA 1085 (19 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Prasuma Khakurel Subedi

VISA APPLICANT:  Mr Prawal Khakural

REPRESENTATIVE:  Mr Dhruba Dahal (MARN: 1383851)

CASE NUMBER:  2210673

HOME AFFAIRS REFERENCE(S):          BCC2022/700235

MEMBER:Linda Holub

DATE:19 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 19 April 2023 at 3:26pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visiting sister and her family applicant – Tribunal is not satisfised visa applicant genuinely intends to stay temporarily in Australia – review applicant did not elaborate on other incentives for the visa applicant to return to Nepal –decision under review affirmed

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 17 May 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 21 March 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 Tourist 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 that the applicant genuinely intends to stay temporarily in Australia for the purposes set out.

5.    The review applicant appeared before the Tribunal on 12 April 2023 to give evidence and present arguments.

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

7.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

BACKGROUND

8.    The review applicant is an Australian citizen and was born in Nepal on 23 May 1986. He acquired Australian citizenship on 25 June 2019. Prior to her being granted citizenship, she held a Student (TU 573) visa and she arrived in Australia on that visa on 4 March 2014. She was later granted a Visitor (FA 600 – Tourist) in December 2016 and on 4 April 2017 she was granted a Skilled (SI 189) visa.

9.    The visa applicant was born in Gandaki, Nepal on 25 July 1993. He is the brother of the review applicant.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant and her family for a period of up to 3 months between 15 May 2022 and 14 June 2022.

3. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

4. 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 not previously travelled to Australia.

5. 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(2):

   ·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.

6. The review applicant explained that when she first came to Australia it was to complete Master of Health Science. She stated that she also completed her MBA and as she had been a registered nurse (RN) in Nepal she applied for recognition and works as a RN. She explained that she recently returned to work after the birth of her second child. 

7. In relation to her husband, the review applicant explained that they were married in 2011 prior to coming to Australia. He was a dependent on her visa. The review applicant told me that her husband is an electrical engineer and works for an engineering consultancy company. Aside from their children, they have no family in Australia and live in a two-bedroom apartment.

8. The review applicant confirmed that the visa applicant has not travelled to Australia and has not travelled outside of Nepal but told the hearing that her parents and parents- in-law have travelled on more than one occasion each. She also advised that her brother-in-law who is in his thirties and is married with two children Australia visited last August and returned to Nepal in November.

9. The review applicant told the hearing that the visa applicant was too busy to participate in the hearing because he had an exam scheduled the following day.

10. The visa applicant lives in Nepal with his mother and father. In Australia, he intends to stay with the review applicant should he be granted the visa.

11. According to written information provided, the visa applicant is employed on a full-time basis as a Program Coordinator at Cuidado Technology Pty Ltd. At the time of application, he had $5,595 in his bank account. His father had $36,219 in his Macchapuchchhre Bank account and $56,098 in his Saving and Fixed Deposit account with ICFC Finance Limited.

12. The review applicant provided oral evidence that the visa applicant is still studying one last subject for his ‘barrier examination’. She stated it is his final examination and examinations had not been scheduled for some time previously because of Covid. She stated that he has been working as a Program Coordinator at Cuidado Technology Pty Ltd for close to a year. She stated that it is an electronic and communications company. I referred to the letter signed by the Managing Director of the company provided in support of the application which states that the visa applicant has been employed full-time since 2018 and that this was inconsistent with her evidence. In response she stated that she’s not sure when his studies began and from her understanding he has a few units left to get through the barrier.

13. In relation to the incentives for the visa applicant to return to Nepal after his visit, the review applicant stated that her parents live in Nepal, and they have properties. She stated that the visa applicant helps his parents manage the properties. She stated they have two houses, and they live in one house rent out the other and they have multiple parcels of ancestral land in a different city. She stated the land is farmed. The review applicant explained that her father has hypertension and high cholesterol and does not travel to the properties very often noting also that the land is in a rural, hilly area so transportation is difficult.

14. I referred to the fact that the visa applicant has a brother in Nepal and asked why he is unable to help their father with the properties. She stated that he has his own family and a job and is busy.

15. I explained to the review applicant that I do not give a lot of weight to the incentives she had articulated so far and explained why. In relation to his job, I did not consider it a significant incentive given his IT skills are highly portable. In relation to helping his parents with the farm, I explained that it seems from her description he seems to have quite a limited role and noted that her other brother remains in Nepal. In response the review applicant stated the visa applicant is waiting to complete his ‘barrier exams’ and needs to do so prior to obtaining his registration. She stated that after he obtains his registration, he will be able to get a better job with more money and with better career prospects, so they are important. She also stated that the family does have hired help with the farm, but he needs to check on it from time to time and sell the products.

16. The review applicant stated that the visa applicant has not had any problems in Nepal for any reason and that he has no intention to work, or to undertake any study or training while he is in Australia. She stated that the visa applicant just wants to come to see her and her family. She stated that at the moment he’s not free to travel because he has to complete his exams.

17. The review applicant was asked to provide passport details of her family members so that Departmental records could be checked. She indicated that could do so by the end of the day.

18. The review applicant was asked if she wanted to add anything further. She responded that she had nothing further to add and I explained that I would take account of the oral and written evidence including about the migration history of other family members once it had been provided.

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

Findings

1. No post hearing submissions were provided by the review applicant in relation to the passport details of family members who have travelled to Australia. Nevertheless, I am prepared to accept that the migration history of those family members is positive. However, I also take into consideration the fact that the circumstances of each applicant are unique.

2. Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for a few weeks for the purpose of visiting his sister and her family. The Tribunal accepts that the travel costs of the visa applicant can be covered by the visa applicant and the review applicant, and he will stay with the review applicant who will cover the cost of his living expenses. 

3. In discussing the incentives for the visa applicant to return Nepal, the review applicant stated that he is obliged to return because he is the only one that helps the family with the properties and also that he has ‘barrier exams’ to complete. The Tribunal outlined its concerns to the review applicant that on balance the incentives for, the visa applicant, did not appear to be compelling such that I can be satisfied he has a genuine intention to remain in Australia temporarily. I put this to the review applicant at hearing and she did not elaborate on other incentives for the visa applicant to return to Nepal nor was any evidence submitted regarding the exams nor their timing. I also noted that his IT/computer skills are highly portable and gave her an opportunity to respond. She did not offer any further insights into her brother’s intentions and without the benefit of his oral evidence, I had residual concerns regarding whether the visa applicant genuinely intends to stay temporarily in Australia

4. For the above reasons the Tribunal is not 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 not met.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Linda Holub
Member