Maharjan (Migration)

[2022] AATA 1843

Maharjan (Migration) [2022] AATA 1843 (31 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rojina Maharjan

VISA APPLICANT:  Mr Robin Maharjan

CASE NUMBER:  2200263

HOME AFFAIRS REFERENCE(S):          BCC2021/2285193

MEMBER:Nicole Burns

DATE:31 May 2022

PLACE OF DECISION:  Melbourne

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 31 May 2022 at 11:37am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to remain or return – businesses and investments in home country – applicant the only sibling remaining in home country, caring for parents – plan to accompany parents to visit citizen and permanent resident siblings – previous compliant visits by parents – intention not to jeopardise future visas and visits – decision under review remitted

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

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 13 December 2021 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 28 November 2021. 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.

5. The review applicant – who is the visa applicant’s sister - appeared before the Tribunal via video link on 31 May 2022 to give evidence and present arguments about the issues in her case.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

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

9. 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 the visa applicant has not visited Australia before, this subclause does not apply. 

10. 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 may include 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.

11. The Tribunal has also considered all other relevant matters (cl 600.211(c)). In doing so the Tribunal has considered factors that may act as an incentive for the visa applicant to remain in Australia after the proposed stay and those factors that would act as an incentive for him to return to Nepal.

12. There is no claim nor indication that the visa applicant intends to study or engage in training during his proposed visit to Australia.  The Tribunal accepts the visa applicant does not intend to study or train in Australia. 

13. According to information on the Departmental file and confirmed at hearing, the visa applicant is a 29 year old married man from Kathmandu, in Nepal who seeks the visa to visit his two sisters and brother in Australia.  When he applied for the visa the purpose was to attend his sister’s wedding in Sydney (travelling with his parents) on 26 February 2022, however this date has passed.  At hearing his other sister – the review applicant – said although his parents’ were granted visitor visas to attend her sister’s wedding they did not attend as they were nervous to travel without their son, the visa applicant, accompanying them.  The review applicant told the Tribunal the plan now is for her brother to accompany their parents to visit Australia in around August 2022, to coincide with the birth of her first child.  They will stay at her house: the visa applicant for two weeks or a month before returning to Nepal.   The Tribunal found the review applicant a credible witness and accepts her evidence about the purpose and plans for the proposed visit.

14. The Tribunal notes in their decision record the delegate noted that the visa applicant had not provided evidence of his personal income and bank documents to assess his financial capacity, considered in the context of the overall economic/employment conditions and cost of living in Nepal.  The delegate therefore was not satisfied the visa applicant had demonstrated sufficient employment and economic ties to Nepal.  At hearing the review applicant said presently the visa applicant is managing director of two companies: Global Team Cargo Care (dealing with airlines mishandled baggage delivery services) and Elysium HR Solution and Career Development.  The review applicant said he has several employees who can cover his work responsibilities whilst he is away.  He also owns an investment property and some land in Nepal. 

15. The review applicant provided several documents as evidence of the visa applicant’s  employment ties and financial position in Nepal including a letter from the chairman of Elysium HR Solution and Career Development, a letter from the CEO of Global Team Cargo Care, copies of a selection of these companies’ bank statements, a copy of his personal bank statements, a property valuation report, and land ownership certificate.  On the basis of this evidence the Tribunal accepts the visa applicant is managing director of two companies in Nepal, owns property and land there, and is financially stable.  It finds his employment and economic ties would act as significant incentives for him to return to Nepal before the end of any permitted stay in Australia. 

16. Further, the Tribunal is satisfied the visa applicant does not intend to work in Australia, noting the purpose and proposed duration of the visit and his plans, and given the Tribunal accepts based on the evidence before it that the visa applicant is financially stable in Nepal.

17. The review applicant said her brother lives with his wife, teenage son and parents in Kathmandu.  Their father works as a property developer.  The visa applicant is the only sibling left in Kathmandu and is there to care for their parents.  The Tribunal accepts her evidence in this regard and finds the visa applicant has strong family ties to Nepal, even if his three siblings reside in Australia. 

18. The review applicant told the Tribunal about her and her siblings’ immigration history and relevant circumstances.  She said she came to Australia as a student in 2004, as did her sister and brother several years later.  The review applicant and her sister are now Australian citizens, having gained permanent residency through skilled visa pathways.  Her sister works as a nurse.  Her brother is a permanent resident, sponsored by his employer (he is a baker).  Her brother and sister are married.  The Tribunal accepts the review applicant’s contentions in this regard.  The review applicant (and her siblings) appears to have worked hard to establish their lives in Australia and there is nothing before the Tribunal to indicate they did not follow the proper migration channels in doing so.

19. At hearing the review applicant said her parents have visited at least three times since she moved here in 2004, the last time in around 2014.  They came on visitor visas and abided by the relevant conditions, including returning to Nepal before the end of their permitted stay.  The Tribunal gives weight to this fact and is of the view the review applicant will ensure her brother abides by relevant visa conditions if his visitor visa is granted, so as not to jeopardise visits by him and/or her parents in the future. 

20. 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

21. 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.

    Nicole Burns
    Member