NIRAULA (Migration)

[2020] AATA 5881

NIRAULA (Migration) [2020] AATA 5881 (22 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dipak NIRAULA

VISA APPLICANT:  Mr Raju Niraula

CASE NUMBER:  1900116

HOME AFFAIRS REFERENCE(S):          BCC2018/5606970

MEMBER:Scott Clarey

DATE:22 December 2020

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 22 December 2020 at 2:38pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant visits by several family members – extensive business interests in Nepal – investment properties in Nepal – family ties to home country – decision under review remitted        

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 27 December 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 12 December 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 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 visa applicant genuinely intended to visit Australia temporarily for the purpose for which the visa would be granted.

   Letter sent to the applicant pursuant to s.359(2) of the Act

5. On 4 December 2020, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act. The Tribunal explained that it was considering whether the visa applicant met cl.600.211 of the Regulations which requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In the letter, the Tribunal invited the review applicant to provide various information to support the visa applicant’s claims that he genuinely intends to stay temporarily in Australia. On 18 December 2020 the review applicant responded to the Tribunal’s request and provided the Tribunal with significant additional information in support of the visa applicant’s claims.

6. The Tribunal has determined that a favourable decision could be made on the basis of the information before it and that a hearing was not required.

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 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting family members who live in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

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 (cl 600.211(a)).

11. The Tribunal notes the visa applicant has previously visited Australia on numerous occasions, having studied here as a student for an extended period in the past. The Tribunal notes that, most recently, the visa applicant lawfully entered and departed Australia on several occasions, between 2007-2013, holding various student and bridging visas. The Tribunal notes that the delegate’s decision record does not raise any issues relating to previous visa non-compliance by the visa applicant. The evidence before the Tribunal is that the visa applicant did comply with the conditions attached to these visas, including departing Australia before the visa ceased. The Tribunal accepts this and gives significant weight to the visa applicant’s previous travel history to Australia and his compliance with immigration conditions.

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 (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.

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

14. The Tribunal notes that several family members of the visa applicant have previously visited Australia. This includes both parents, a sister and sister in law. The Tribunal notes there is no information before it that any of these family members did not comply with the conditions attached to their visas. The Tribunal places some weight on this history of compliance of the review applicant’s other family members when visiting/entering Australia.

15. The review applicant, in his response to the Tribunal’s request for information, stated that her brother is a frequent traveller, having made multiple trips outside of Nepal. This includes trips to Singapore in 2018 and the United Kingdom in 2019. The Tribunal accepts this and notes there is no evidence before it that the visa applicant has failed to comply with the conditions of the visas held for these countries.

16. According to information supplied by the review applicant in his response to the Tribunal, the visa applicant has extensive business interests and work ties in Nepal, including a consulting company, a training business and a farm. He also has other financial ties to Nepal, including multiple investment properties. The Tribunal has had regard to various documents submitted by the review applicant in support of these claims. The Tribunal accepts these claims.

17. According to information supplied by the review applicant in his response to the Tribunal, the visa applicant also has strong family ties to Nepal with his wife, young child and mother living there. The Tribunal accepts this.

    Findings

18. The Tribunal has considered the documentary evidence submitted with the application and the significant amount of additional documentary evidence that has been submitted to the Tribunal in support of the application.

19. After considering all the evidence before it, on balance the Tribunal considers that factors such as the presence of the visa applicant’s wife, young child and mother in Nepal; his ongoing business interests in Nepal; and his generally well-established life there; form stronger incentives for him to return to Nepal than the incentive for him to remain in Australia with his brother. I have also placed weight on the visa applicant’s history of compliance with conditions for multiple visas he has previously held in Australia. The Tribunal accepts that the visa applicant has a genuine intent to stay temporarily in Australia to visit his brother in Melbourne. The Tribunal accepts that the visa applicant intends to return to Nepal within the specified timeframe.

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.

    Scott Clarey
    Member