Rai (Migration)

[2023] AATA 2186

Rai (Migration) [2023] AATA 2186 (19 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sarojini Rai

VISA APPLICANT:  Mrs Alina Rai

REPRESENTATIVE:  Mrs Elaine Caguioa (MARN 1172914)

CASE NUMBER:  2212265

HOME AFFAIRS REFERENCE(S):          BCC2021/822074

MEMBER:Peter Papadopoulos

DATE:19 June 2023

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 19 June 2023 at 8:41am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – visit Australian family members – visa applicant genuinely intends to stay temporarily in Australia – applicant has sufficient funds and assets to provide for her during the proposed visit – close family ties to home country– decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 338

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 15 June 2022 to refuse to grant Mrs Alina Rai (Alina or the visa applicant) a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Alina and her husband, Mr Rajendra Rai (Rajendra) made separate applications for a Visitor (Class FA) visa on 11 January 2022. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams.  Each applicant applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.  Ms Sarojini Rai (Sarojini or the review applicant) sought to sponsor each of Alina and Rajendra for these visas.

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 clause 600.211:

   600.211
   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:  
   (a)  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; and 
   (b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and 
   (c)  any other relevant matter.

4. A delegate of the Minister for Home Affairs refused to grant the visas to each of Alina and Rajendra on the basis that they each did not meet clause 600.211 because the delegate was not satisfied that they genuinely intended to stay temporarily in Australia.

5. On 22 August 2022, the Tribunal received a review application form in which Alina was incorrectly specified as the review applicant and no information was provided in relation to either Sarojini or Rajendra.  This review application form specified Mrs Elaine Caguioa, a registered migration agent (MARN 1172914), as Alina’s representative and authorised recipient.

6. On 24 August 2022, a Tribunal officer wrote to the representative alerting her to the possibility that the incorrect person may have applied for review.  The Tribunal drew the representative’s attention to the Department’s notification letter which explained who can apply for review and provided further information to the representative to enable the lodgment of a valid review application within the applicable statutory time limit.  Later that day, the Tribunal received another review application form in which:

   ·     Sarojini was correctly specified as the review applicant;

   ·     Alina was specified as ‘visa applicant 1’; and

   ·     Rajendra was specified as ‘visa applicant 2’. 

7. A single review application fee was paid.  The representative provided the Tribunal with the delegate’s decision to refuse to grant Alina’s visa but did not do so in relation to the delegate’s decision to refuse to grant Rajendra’s visa.

8. The review application was made in accordance with section 338(7) of the Act.  According to regulation 4.12 of the Migration Regulations 1994 (Regulations), a combined application for review may be made in limited circumstances and these do not allow for the Tribunal to combine review of the delegate’s decisions in relation to each of Alina and Rajendra.

9. Sarojini appeared before the Tribunal on 14 June 2023 to give evidence and present arguments. The representative also attended the hearing. 

10. At hearing, the Tribunal sought clarification from Sarojini and the representative in relation to whether review was being sought in relation to the delegate’s decision in relation to Alina, the delegate’s decision in relation to Rajendra or both decisions.  The Tribunal was advised that review was only being sought in relation to the decision pertaining to Alina and that Rajendra was not intending to visit Australia at this time.  Accordingly, the Tribunal has proceeded to determine the review application on the basis that Alina is the only visa applicant for whom review has been sought by Sarojini.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims and evidence provided to the Department

12. The following documents were provided to the Department in support of Alina’s visa application:

    ·     Department form (online), ‘Application for a Visitor Short Stay Visa’, submitted 11 January 2022 detailing Alina as the visa applicant;

    ·     Department form 1149, ‘Application for sponsorship for sponsored family visitors’, dated 11 January 2022, which specified that Sarojini was sponsoring her mother Alina;

    ·     Department form 956, ‘Appointment of a registered migration agent, legal practitioner or exempt person’, dated 31 December 2021, and specifying Narayan Prasad Humagain (MARN 1802195) had been appointed as Alina’s registered migration agent;

    ·     Relationship certificate from the Model Office of the Village Development Committee Godawari, including various passport-seized photographs and stating that Sarojini is the daughter of Rajendra and Alina;

    ·     Copies of pages from Alina’s passport issued 27 November 2015, showing biodata information as well as various exit and entry stamps;

    ·     Letter of Intention dated 11 January 2022 from Alina stating she wished to visit her daughter, Sarojini, and granddaughter in Australia;

    ·     Letter from Nova Saving and Credit Co-operative Ltd, stating Rajendra and Alina have a fixed deposit account amounting to R-30,00,000 Thirty Lakhs, which earns them Rs. 25,000/-per month;

    ·     Invitation Letter from Sarojini, stating she wished for her parents to visit and meet their granddaughter, who was born on 20 January 2021 and has not seen her grandparents due to the pandemic;

    ·     Sarojini’s bank statement from the Commonwealth Bank specifying a balance of AUD12,334.65 at close of business on 10 January 2022; and

    ·     Payslip for Sarojini for the period 2-15 May 2022 detailing her employment as a nurse in Geelong and her annual salary of AUD89,591.32.

    Claims and evidence provided to the Tribunal

13. On 29 May 2023, the representative provided the Tribunal with a submission dated 19 May 2023 (the representative’s submission) along with the following supporting evidence:

    ·     Property valuations and evidence of land assets in Nepal;

    ·     Land Lease agreement in Nepal;

    ·     Fixed deposit and bank statements for Rajendra;

    ·     Documents relating to Alina’s familial ties in Nepal including a relationship certificate and a passport for Mrs Asha Devi Rai, Rajendra mother (certificate dated 22 May 2023);

    ·     Documents relating to Sarojini’s financial position including bank statement, payslips, and a rates notice; and

    ·     Documents relating to the financial position of Sarojini’s husband, Mr Jaspreet Singh, including his Personal Income Tax Return for financial year ended 30 June 2022 and a business bank account statement.

14. Relevantly for the purposes of this review in which only Alina is seeking to travel to Australia, the Tribunal has construed the arguments in the representative’s submission, at their highest, as follows:

    ·     That Alina previously visited her family members in Australia in 2012 and 2017, abided by her visa conditions during those visits and did not remain in Australia beyond each temporary period of stay authorised.

    ·     That a previous visitor visa application for Alina was made but refused on 21 February 2020 ‘due to a lack of substantial evidence related to the personal, economic and financial ties’ to Nepal.

    ·     That the decision under review was a further refusal to grant Alina a visitor visa because there was insufficient ‘evidence of financial or familial ties’ to Nepal.

    ·     That Alina is financially stable, has access to a stream of income and economic ties to Nepal based upon the following evidence:

    o   Alina and Rajendra’s joint ownership of 2.5 storey building/house and land in Nepal valued at approximately AUD720,000;

    o   Alina and Rajendra’s joint fixed savings deposit held at the Nova Saving and Credit Co-Operative Ltd in the sum of approximately AUD34,203.32 as at 28 March 2023 which accrues monthly interest of approximately AUD319.23;

    o   Letter of 28 March 2023 from the Ward Chairman of the Godawari Municipality confirming that Alina and Rajendra have paid ‘all local taxes’ for the 2022/2023 fiscal year;

    o   Rajendra’s Sunrise Bank Limited Statement specifying a balance amount equivalent to AUD6111.66; and

    o   A lease agreement dated 29 March 2023 (lessors: Alina and Rajendra; lessee: Mr Ngima Dhan Rai) specifying an annual rent amount payable equivalent to AUD2,723.24.

    ·     That Alina has strong family ties in Nepal, including Rajendra and her mother-in-law who lives with her and Rajendra.

    ·     That Sarojini and her husband Mr Jaspreet Singh (Jaspreet) own their home and are capable of providing financial support to Alina during her proposed stay in Australia.  As at 16 May 2023, Sarojini held savings in her NAB account in the sum of AUD20,650.16.  Sarojini has been employed by Epworth Health Care since 21 November 2016 and is currently working on a part-time basis as a registered nurse at Epworth Geelong.  Her current annual salary is AUD36,642.94.  Jaspreet’s taxable income for the financial year ended 30 June 2022 was AUD85,779.

    Issues for determination

15. 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 she has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the visa applicant was subject; whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

    Purpose of stay

16. In the present case, the visa applicant specified in the application form that she sought to visit family in Australia and wanted to attend a family reunion on 30 January 2022.  At hearing, the review applicant told the Tribunal that her mother still proposed to visit Australia for a period of three months to see her and her family. The review applicant indicated that she and her husband would take her mother and other family members on trips to Adelaide, Sydney and Cairns during her mother’s stay in Australia but the Tribunal doubts this claim as her oral evidence in this regard was particularly vague and there was no documentary evidence to support this claim.  Nevertheless, the Tribunal is satisfied that the proposed visit to spend time with a daughter and other family members in Australia is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

    600.211(a)

17. 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)).

18. The visa applicant has previously travelled to and remained in Australia as the holder of a Subclass 600 visa for two temporary visits. The first visit was between 22 July 2012 and 15 October 2012. The second visit was between 12 January 2017 and 11 November 2017.  Alina did not remain in Australia beyond the period of stay authorised for either visit and there is no evidence before the Tribunal indicating that she failed to comply with her visa conditions during these two visits. 

    600.211(b)

19. 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 relevantly as follows (cl 600.612):

    ·     8101 – The holder must not engage in work in Australia.

    ·     8201 – While in Australia, the holder must not engage, for more than three months, in any studies or training.

    ·     8503 – The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

    ·     8531 – The holder must not remain in Australia after end of the period of stay permitted.

20. In considering whether the visa applicant intends to comply with condition 8101, the Tribunal discussed with Sarojini at hearing the proposed financial arrangements for Alina’s visit to Australia.  At hearing, the review applicant highlighted the fact that her mother was retired, had no debts in Nepal and had no intention of working in Australia.  She explained that Alina would spend a large part of her time in Australia bonding with her two year old granddaughter Summer by taking her to the library, the park and spending some quality time with her.  She further described the emotional and physical support that her mother had provided during previous visits to Australia and the Tribunal is persuaded that Alina’s proposed period of stay in Australia will primarily involve the provision of care and support to her Australian family members rather than work.  

21. Furthermore, persuasive oral evidence was provided by the review applicant in relation to her capacity and willingness to financially support the visa applicant in Australia during the proposed period of stay.  She confirmed her family’s financial position, as outlined above, and stated that she would be accommodating the visa applicant at her home in Geelong which had a guest bedroom that her mother would use during her visit.  She told the Tribunal that she currently held about AUD16,000-18,000 savings in her bank account and was prepared to drawdown on those savings to fund her mother’s proposed three month visit to Australia. She also explained that her home loan mortgage payments were around AUD5,000-6,000 per month.  After some discussion with the Tribunal about the impact of higher interest rates and costs of living in Australia, the review applicant conceded that she and her husband may face difficulty funding numerous family trips with Alina to Adelaide, Sydney and Cairns as had been initially suggested. The Tribunal acknowledged the review applicant’s candour in relation to her broader financial circumstances and finds that she embellished her evidence in relation to some of the interstate travel tourist activities that her mother proposed to undertake in Australia during her visit. Nevertheless, and perhaps more importantly, the Tribunal does not anticipate that the visa applicant would work in Australia for the purposes of raising funds to subsidise such tourism. 

22. Taking into account the relatively short period of stay proposed for the visit, the evidence relating to the visa applicant’s stable financial position in Nepal and the review applicant’s demonstrated willingness and capability to provide financial support and accommodation to her mother, the Tribunal is satisfied that the visa applicant intends to comply with condition 8101.

23. There is no indication before the Tribunal that visa applicant would seek to engage in study or training in Australia. At hearing, the review applicant insisted that her mother was a retired teacher and that most of her time would be spent with her daughters as well as bonding with her granddaughter Summer who has a speech impediment.  She explained that Alina spoke English and that she was keen to help Summer overcome her speech impediment.  On this basis, it was suggested that the visa applicant had no interest in undertaking study or training in Australia.  Given this evidence, along with the fact that the proposed period of stay sought was for a period of three months, the Tribunal is satisfied that the visa applicant intends to comply with condition 8201. 

24. Condition 8503 does not, on its face, mandate the applicant comply with any particular requirement. The condition operates to restrict the grant of a substantive visa, other than a protection visa, to a visa holder while they are onshore.  Furthermore, unless waived, the condition operates to invalidate the onshore lodgment of any visa application other than a protection visa application while an applicant is onshore. Therefore, there is no basis upon which the Tribunal may assess the applicant’s compliance with this condition as the condition pertains to a restriction upon the making of a further application by operation of law rather than a requirement to do, or refrain from doing, an act or thing.

25. In considering whether the visa applicant intends to comply with condition 8531, the review applicant indicated at hearing that her mother would not remain in Australia beyond the period authorised by her visitor visa.  The Tribunal raised a concern that her mother might not leave Australia because, based upon her own oral evidence at hearing, she was desperately needed in Australia to help care for Summer.  By way of response, Alina stated that her mother is a law-abiding citizen of Nepal who duly paid her taxes in Nepal.  She insisted that Alina would be required to return to Nepal to help look after her mother-in-law and that she had a settled life in Nepal that she would be keen to return to.  She explained that her mother was a keen gardener who enjoyed growing her own organic vegetables at her home in Nepal and that this pursuit, along with a desire to maintain and enjoy her family and social life in Nepal, would induce her to depart Australia within the period of stay authorised by her visa.  She also explained that her mother was accustomed to the weather in Nepal and preferred it over the weather in Australia.  The Tribunal is persuaded by this response, particularly given Alina’s evidence at hearing that Rajendra would remain in Nepal while Alina is in Australia. Taking into account these matters, and other relevant matters outlined below, the Tribunal is satisfied that the visa applicant intends to comply with condition 8531.

    600.211(c)

26. The Tribunal has also considered other relevant matters (cl 600.211(c)). The review applicant gave evidence that her mother had previously visited the United Kingdom on two occasions and did not contravene any immigration requirements during those visits.  She attended a family wedding in 2004.  She later went to the United Kingdom to support her sister after she gave birth to a son.  She also explained that her mother regularly travelled to Darjeeling in India as that was her place of birth.  The Tribunal accepts this evidence.

27. However, of some concern to the Tribunal in the present case was the possibility that Alina would remain in Australia given the comparably more favourable economic conditions in Australia than Nepal.  The Tribunal raised this concern with the review applicant at hearing, noting that her mother might avail herself of an opportunity to remain in Australia beyond the proposed period of temporary stay so as to escape the comparably unfavourable circumstances generally faced by people in Nepal.  The Tribunal drew to the review applicant’s attention key aspects of the following country information pertaining to widespread poverty in Nepal:

    ·     Nepal is among the poorest and least developed countries in the world. The UNDP’s Human Development Report 2018 update, Nepal, ranked 149th out of 189 countries, falling several ranks since the last update in 2016. An estimated 25 per cent of Nepalis live below a poverty line of USD$1.25 a day.[1]

    ·     Nepal is among the poorest and least developed countries globally. According to a September 2022 United Nations Development Programme (UNDP) report, between 2009 and 2019, 15 per cent of the population lived below the international poverty line and 25.2 per cent below the national poverty line. The report also indicates that 17.5 per cent of the population lived in multidimensional poverty. In May 2022, the UN Special Rapporteur on extreme poverty and human rights reported that under the 2010 national poverty line in Nepal, set at Nrs19,262 per year per person, 25.2 per cent of the population, would live in poverty. This line, however, was outdated and exceedingly low, and if World Bank standards applicable to lower-middle-income countries ($3.20 per day per person (2011 purchasing power parity (ppp)) was used, the poverty rate would be the equivalent of 50.8 per cent of the population.[2]

    [1] Department of Foreign Affairs and Trade, Country Information Report - Nepal (1 March 2019), para. 2.14

    [2] Department of Home Affairs, Country of Origin Information Services Section (COISS) Report effective from 13 April 2023, pp. 35-36

1. The review applicant considered this information and gave the following response:

   I assure you, we are not high-class but we are a middle-class family.  My parents assisted me to send me as a student to Australia and they paid for me.  We are middle-class and this is enough for us.  We are from Kathmandhu and my father went overseas to work and he accumulated some savings then.  We do have a house and land and my parents have savings.  My mum will definitely go back to Nepal. I am sure she will not overstay because she will go back to her husband and mother-in-law. 

2. This response, along with the documentary evidence pertaining to Alina and Rajendra’s financial circumstances in Nepal, assuages the Tribunal’s concern.  In terms of other evidence submitted to demonstrate that the visa applicant genuinely intends to stay temporarily in Australia, the Tribunal is persuaded that the visa applicant’s close ties to her husband Rajendra, mother-in-law, wider family and community network in Nepal will act as an incentive for her to return to Nepal at the end of her proposed visit to Australia. 

   Conclusion

3. Having considered all the evidence, the Tribunal finds the review applicant to be a credible witness for the most part.  The Tribunal accepts her evidence apart from that provided at hearing in relation to the family’s interstate tourism activities during Alina’s proposed visit.

4. The Tribunal accepts that the visa applicant’s personal ties in Nepal provide strong incentives for her to return at the end of her permitted stay in Australia. These personal ties include her ties to her husband, mother-in-law, wider family and community network in Nepal. The Tribunal is satisfied that the visa applicant is well-settled in Nepal and it is not her intention to come to Australia for the purpose of remaining beyond the short duration of her proposed visit or otherwise seeking permanent residence here. In reaching this finding, the Tribunal has placed significant weight upon Alina’s compliance with immigration requirements during her two previous visits to Australia.

5. The Tribunal is satisfied that it is the visa applicant’s intention to visit her daughters, son-in-law and grandchild in Victoria and that she will not remain in Australia after the end of her permitted stay. The Tribunal is satisfied she will comply with her visa conditions. 

6. 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

7. 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.

   Peter Papadopoulos
   Member