Thapa (Migration)

[2018] AATA 1190

Thapa (Migration) [2018] AATA 1190 (13 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Lal Bahadur Thapa

VISA APPLICANT:  Ms Dhan Kumari Thapa

CASE NUMBER:  1718523

DIBP REFERENCE(S):  BCC2017/2178538

MEMBER:Moira Brophy

DATE:13 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 March 2018 at 2:00pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Whether the applicant genuinely intends to stay temporarily in Australia – Witness credibility – Evidence provided inconsistent with previous visa application – Limited incentives for applicant to return to home country

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.212, 600.231, Schedule 8, Conditions 8101, 8201, 8503, 8531

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 Immigration on 25 July 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 June 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 genuinely intended to visit Australia temporarily.

5. The review applicant, Mr Lal Bahadur Thapa appeared before the Tribunal on 7 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Ms Dhan Kumari Thapa. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   Evidence of Review Applicant

8. The review applicant told the Tribunal that he resided in a property he rented with his wife and two children. The property is shared with another couple from Nepal and they each pay 50% of the weekly rent of $800. His wife came to Australia from Nepal before he came. They met in Australia and married here. His children are aged four and two.

9. The review applicant said he and his wife were in the process of buying their own home. They paid $610,000 and have so far paid a deposit of 10%. They will obtain a mortgage for the balance of the purchase price. The review applicant said that he has savings of $60,000 and he does not have any debts.

10. The review applicant said that he is currently employed as a truck driver with Bridgestone Tyres. He has worked there for around nine months and he is paid $1100 per week. His wife is not in paid employment.

11. The review applicant said that his mother’s brother was in Australia and he had a cousin living here. His parents are in Nepal as is his sister and her four children who are aged between 20 and 27 years. His sister is not in paid employment. His father was previously married and he has a stepbrother who is around 26 years old. He is currently living in Japan. His parents are retired. His father was  previously in the Indian policeforce. He retired from that work in 2000 and he is paid a pension. His parents also receive income from the rent for another house they own. He said his parents have a small landholding around their house.

12. The review applicant said that no members of his family had ever been to Australia. His parents had been in India while his father worked there but they had not travelled apart from that. His sister was born in India but she has not been anywhere else. The review applicant first said that his mother had not been refused a visa to any country but then clarified that by saying she had been refused a visa to Australia on two previous occasions. The review applicant said that he last saw his mother when he went to Nepal for two months with his wife and children in 2016.

13. The review applicant said that his mother wanted to come to Australia for three months. He said she may only come for two months but she would prefer to have the option to be able to come for three months.

14. The review applicant said that his father was in good health both physically and mentally. He said his mother was also in good health but that she had a hearing impairment. She does not take any medication. He said that while this application was only for his mother he would like in the future to be able to bring both his parents to Australia together. He said he wanted his parents to be able to spend time with his family and to see how they live and what the lifestyle in Australia was like. He said his mother was not planning to work and she was not planning to study or do training.

15. The review applicant said that he would pay for his mother’s airfare and for her living expenses. He said he would meet all the expenses incurred by her travel. He said she would bring $2000 with her to Australia. The review applicant said that his mother owns their house and the land surrounding the house and that she has savings of around $5000. He said her savings fluctuate but is always around that amount. She does not have any debts.

16. The review applicant said that the political instability in Nepal did not have any impact on his parents. He said conditions were a lot more stable now than they were at the time he had come to Australia.

17. When asked what incentives his mother had to return to Nepal at the end of his stay in Australia he said all her family were in Nepal she would return to be with them.

18. The Tribunal informed the review applicant that there was information before it which could be the reason, or part of the reason, why it may have to affirm the decision made by the Department. The Tribunal informed the review applicant that this information was important because it could lead the Tribunal to form the view that the review applicant was not a witness of truth and if it came to this view this could lead to the conclusion that his evidence could not be relied upon in the making of findings of fact.

19. The Tribunal informed the review applicant that if it came to this conclusion it would have to affirm the decision made by the Department. That would mean that his application to the Tribunal would not be successful and the visa applicant would not be entitled to a Visitor visa.

20. The Tribunal informed the review applicant that he would be informed of the information and given an opportunity to comment on or respond to the information. The Tribunal also informed the review applicant that he was not obliged to comment on or respond immediately and could seek additional time to do so.

21. The Tribunal informed the review applicant that there was an inconsistency in the evidence he gave today as opposed to evidence he gave at a previous Tribunal hearing of his application for a protection visa. At the hearing today he gave evidence his father had been a police officer in the Indian police where he previously gave evidence his father was a farmer. The review applicant responded that his father retired from the police force in 2000 and he now works the land around their house so there was not an inconsistency in the evidence.

22. The Tribunal informed the review applicant that there was an inconsistency in the evidence in relation to his father’s health. He gave evidence today that his father was in good health both physically and mentally. At the time of the hearing of his previous application he gave evidence his father had been hospitalised with psychiatric illness. The review applicant responded by saying his father’s health had been restored and he was now in good health.

23. The Tribunal informed the review applicant that there was an inconsistency in the evidence in relation to the age of his brother.  He had given evidence today that he did not have any siblings other than his sister and he had a step brother living in Japan who was aged around 26 years old. At the time of hearing of his previous application in February 2013 he had given evidence his parents lived with his nine year old brother. The review applicant said there was no confusion he had just omitted to say it was his step brother and he may be a little confused about his age.

24. When asked whether there was anything else he wished to tell the Tribunal, he answered yes. He stated that he would like to impress on the Tribunal the reasons for the visa applicant's application. It was unfair that he not be allowed to bring members of his family to Australia to see how he and his family lived. He said it was cost prohibitive for he and his family to go to Nepal as they had to buy airfares for four family members. He said it was a more economical solution for members of his family to come to Australia. He said that if he and his family have to travel to Nepal it means having to take his children out of day care and that would mean they would fall behind in their learning.

25. The review applicant said he was prepared to lodge a security bond of $10,000. He said he would be prepared to lodge a higher amount so long as it did not interfere with the purchase of his house.

    Evidence of Visa Applicant

26. The visa applicant said that she lives with her husband and with her grandson. She has lived at her present address for the past 15 years. Neither she nor her husband are in paid employment and her husband is in receipt of a pension from the Indian government as he was in the Indian police force.

27. The visa applicant said that she had not seen her son for the past eight years and she wanted to be able to spend time with him his wife and his children. She would like to come to Australia for three months.

28. The visa applicant said that her son would pay for her airfare and she did not know how much her expenses would be so she was not able to tell the Tribunal how much money she would bring to Australia. She said her assets were her house, the land it was on and her husband’s pension. She said that her husband had savings and she would have access to those savings. She estimated he had around $3000 in savings.

29. The visa applicant said that she was in good health and she did not take any medication. She said her husband was also in good health.

30. The visa applicant said that the only time she had been outside Nepal was when she had gone to India and had lived there for two years. She has previously had a visa refusal from Australia.

31. When asked why the Tribunal should accept that she would only stay in Australia on a temporary basis the visa applicant said that her assets and her husband were in Nepal and therefore she would return there.

32. At the conclusion of the visa applicant’s evidence the Tribunal noted the difficulties in obtaining evidence from the visa applicant because the line had kept dropping out and the visa applicant’s grandson had been prompting the answers of the visa applicant in the background. The Tribunal accepts that this prompting may have been as a result of the visa applicants hearing impairment.

    CONSIDERATION OF CLAIMS AND EVIDENCE

33. 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.

34. In the present case, the visa applicant seeks the visa for the purposes of visiting her son and his family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

35. 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)).

36. The review applicant told the Tribunal that none of his immediate family had visited Australia. He said the visa applicant had only been outside Nepal when she had been in India while her husband was working there. This was consistent with the evidence of the visa applicant. There was no evidence the visa applicant had previously held a visa, accordingly there was no evidence of previous compliance or non compliance.

37. 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.

38. The Tribunal accepts from the evidence given by the visa applicant that she is currently not employed and that she has no intention to either work or engage in study or training in Australia . The Tribunal accepts the visa applicant would comply with 8101 and 8201.

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

40. The concern for the Tribunal was, as it was for the delegate, whether there was a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. 

41. The Tribunal considered the incentives for the applicant to return to Nepal at the end of her visit.

42. The Tribunal accepts the evidence of the review applicant he would pay the costs of his mother’s travel to Australia and meet the costs incurred during her stay. While the evidence of the visa applicant as to what financial resources she had available to her was limited the Tribunal accepts that this was  impacted on by her age and cultural background. The Tribunal was concerned she did not mention the rent received from property. The Tribunal is satisfied that her asset base is not a strong incentive for her to return to Nepal as assets such as property may be disposed of and the sale proceeds transferred.

43. The Tribunal considered the evidence of the visa applicant as to why she had applied for a visitor visa. She told the Tribunal that she wanted to spend time with her son and his family. Given the ages of his children the Tribunal accepts as a grandparent that is a valid and understandable wish. Equally the Tribunal accepts the evidence of the review applicant that he wanted to be able to show his mother his new life and have her spend time and get to know her grandchildren.

44. The evidence was the visa applicant also had her brother and his family in Australia.

45. At the time of hearing the review applicant was asked why it was only his mother who had applied to travel. He indicated that his wish was for both his parents to travel but since the visa application had been previously refused it was considered unwise to risk having two applications refused. The inference was if this visa application was granted an application would then come for his father to also visit. In that context the Tribunal does not see the husband of the visa applicant being as she stated an incentive to return to Nepal.

46. The Tribunal accepts the daughter of the visa applicant and her four children reside in Nepal. While the Tribunal accepts they may be a supportive and involved family the fact remains the grandchildren there are now young adults and the visa applicant does not have child care responsibilities to consider.

47. The Tribunal then considered the current situation in Nepal. While accepting the general situation and stability has improved since the election in 2013 and the adoption of a new constitution in 2015 it is still a country with some problems. Given the age of the visa applicant and the evidence of her generally being in good health but having a hearing impairment the Tribunal considered the provision of health services in Nepal to be a particularly relevant consideration. According to the DFAT Country Information report dated 21 April 2016:

    2.17 Nepal’s health sector is challenged by the country’s widespread poverty, limited government funding and its remote and mountainous geography which hinders the development of appropriate health infrastructure and access to health services outside of the densely populated southern plains region. Health care services are generally considered inadequate by international standards, and some facilities, particularly in Kathmandu, were damaged or destroyed by the 25 April 2015 earthquake. Hospitals in Nepal tend to be located in urban areas and provide a much wider range of medical services than rural health centres, although the quality of health care provided in large urban centres such as Kathmandu is still variable. The average Nepali spends just 5 per cent of their annual income on health-related needs.

    2.18 According to the UNDP, average life expectancy at birth for both males and females in Nepal is 69.6 years, slightly above the regional average of 67 years. Disease prevalence tends to be higher in Nepal than in other South Asian countries, especially in rural areas. Malnutrition and poor sanitation are widespread. According to data compiled by the World Health Organization, non-communicable diseases (including diabetes, chronic respiratory diseases, cancers and cardiovascular diseases) account for an estimated 60 per cent of total deaths in Nepal, while communicable, maternal, perinatal and nutritional conditions are estimated to account for 30 per cent of all deaths in Nepal.

48. The Tribunal has taken this into account in its assessment of whether there were incentives for the visa applicant to return to Nepal at the end of her visit to Australia.

49. Having considered all of the evidence cumulatively, the Tribunal is of the view that the factors that may encourage the visa applicant to remain in Australia are more compelling than the factors that may encourage her to leave Australia. These factors and the Tribunal's concerns in relation to the credibility of the review applicant raise serious concerns in relation to whether her expressed intention to only visit Australia is genuine.

50. 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

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

    Moira Brophy
    Member