Tiwari (Migration)

[2020] AATA 2716

Tiwari (Migration) [2020] AATA 2716 (15 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kabita Tiwari

VISA APPLICANT:  Mr Kapil Tewari

CASE NUMBER:  1814227

HOME AFFAIRS REFERENCE(S):          BCC2018/1529905

MEMBER:Jane Marquard

DATE:15 June 2020

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 15 June 2020 at 10:45am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – bogus document submitted with previous student visa application –relationship certificate – provided by agent at the time – careless rather than with intention to deceive – relationships genuine – few incentives to remain in Australia, or not to comply with conditions – strong incentives to return to home country – young children and sick mother, employment, property and finances – compliant travel by other family members – understanding of consequences of non-compliance – offer of surety – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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 Department for Home Affairs (the Department) on 23 April 2018 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 is a 41-year-old man from Nepal. The review applicant is his sister, Kabita, who is an Australian citizen.

3. The visa applicant applied for the visa on 4 April 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 visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

4. 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.

5. The delegate of the Department 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 stay temporarily for the purpose for which the visa was granted.

6. The review applicant appeared before the Tribunal with her representative, Khomal Khatiwada, on 10 June 2020 by telephone to give evidence and present arguments. The visa applicant was also on the telephone from Nepal and their other sister, Samita, also gave evidence by telephone in Sydney.  The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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. 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)). The visa applicant was granted a student visa on 11 May 2009 but did not travel to Australia as his visa was cancelled on 13 May 2009 on the basis of non-compliance with s116(1)(d) of the Act. The reason given was that after the decision, Departmental checks found that a ‘bogus’ document had been submitted to the Department. The document was a relationship certificate from Kathmandu Metropolitan Office. In a statutory declaration dated 29 March 2018, the review applicant submitted that this relationship certificate (certifying a blood relationship between her mother and the visa applicant) was provided by Buddhi Prasad Regmi from SBSC Consultancy, an agent who prepared the application.  According to the review applicant, the visa applicant relied on the agency to prepare documents to support his application. Mrs Tulsha Tiwari is his genuine mother and he did not know that the relationship certificate was fraudulent. The review applicant said that this caused the visa applicant much physical and financial stress and he does have a genuine relationship with his biological mother, which can be evidenced by DNA matching. The Tribunal, noting that this was a serious issue impacting on the honesty of the visa applicant and his intentions in Australia, asked the applicant for response or comment.

11. The visa applicant submitted that the certificate was provided ten years ago and it was the first time he had applied for a visa. He said that when applying, he left the details to his agent. He said that he did not know at the time of submission of the visa application that this certificate was fake, and only found out when the visa was cancelled.  The Tribunal asked him how the Tribunal could be assured that other documents provided by him are genuine. He said that since then he has taken control of the process and checks to ensure that all the documents provided are genuine.  He said that he is a genuine, honest, law-abiding person and will comply with and follow all the laws and permissions of the Australian government.

12. In considering whether the visa applicant genuinely intends to stay temporarily for the purpose for which the visa is granted, the Tribunal notes that provision of a fake document ten years ago does not in itself indicate that the visa applicant does not genuinely intend to stay temporarily for the purpose for which the visa is granted. However it is a factor to be taken into consideration, as there was deception on his behalf to immigration authorities. After hearing his explanation of the events, and given the other aspects of his character, discussed further below, the Tribunal accepts that the fake document was provided carelessly rather than with an intention to deceive the Department in that he did not check the documents provided by the agent. The Tribunal accepts that he has learnt a lesson from the incident and that he will be careful to ensure that all other documents and information provided are genuine and compliant. The Tribunal is satisfied therefore that the provision of the fake relationship certificate ten years ago does not lead to a conclusion that his intention is to stay permanently in Australia at the current time. The Tribunal notes further that although the certificate was false, the information in it was genuine, that there is a blood relationship between him and his mother.  

13. 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 may be subject are as follows:

14. ·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.

15. The intention to comply with these conditions is considered alongside the question of whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, as the relevant issues are inter-related. The Tribunal has considered other relevant matters (cl.600.211(c)) in making findings on these matters.

16. Firstly, the Tribunal has taken into consideration the purpose and duration of the visit.  The  visa applicant has applied for a visa to visit his sisters, the review applicant and his other sister, Samita, for one month. Originally he applied to visit in May 2018. The review applicant in a statutory declaration, said that she and her sister wanted their brother to visit for one month to see the ‘beautiful country’ and attractions in Sydney and Canberra. She said that they had not seen their brother for a long time and were unable to arrange their own time to visit Nepal due to work commitments and children’s school. At the Tribunal hearing, the review applicant explained that they are very close to their brother in Nepal. He became a substitute father to them after the death of their own father. She said that she loves Australia, which is ‘her country’ and she would like to show it to her brother. They also want him to visit her children, aged 11 and 8 and Samita’s child, aged four. He has never met Samita’s child, and he has missed out on major occasions such as birthdays and festivals. She wants him to see how she and her sister are living. Samita reinforced this, saying that although their mother has visited, they really want to show their brother their way of life.

17. The Tribunal accepts that prima facie this appears to be a reasonable time for a visit with family, and it would unlikely to be feasible to work or study during such a short visit.

18. Secondly, the Tribunal has taken into account the visa applicant’s incentives to return to Nepal. The Department in its decision referred to Nepal being a high-risk area, and there is no doubt that Nepal’s economy suffers from a number of significant problems. However in the visa applicant’s case, there are strong incentives for the visa applicant to return to Nepal, as the applicant is married with two young children, born in 2010 and 2017. Letters were provided from his sons’ school and a relationship certificate was provided showing the family composition.  The visa applicant also takes care of his mother who was diagnosed with cancer in 2010. The review applicant said that he is very responsible and takes good care of her mother, assisting with various medical needs. She had a bone marrow transplant in Delhi in 2011 and the visa applicant takes her back to Delhi each year for check-ups. He also takes her monthly to the local hospital for treatment and check-ups. The review applicant said that when she visited Nepal she saw that her brother knows his mother’s medication and he does everything for her, giving her insulin and checking her blood sugar levels. She said that her sister-in-law has two children and it is too much for her to look after their mother as well. She emphasised that even ten years ago her brother would have returned to Nepal at the end of his visit, but now he has even more reasons to return, as he is well-settled and married and owns property.

19. The visa applicant has an accounting degree, and a Masters in Business Administration. He has been employed by a company called Kunwar Law Associates as an accountant since 2016. A letter from Kunwar Law Associates dated 14 March 2018 stated that the visa applicant had worked there since 2016 and had one month’s leave to visit Sydney.  The review applicant said that he loves his work. He has built a three-storey house in the centre of Kathmandu which he owns. He rents two floors out which provides income for them, and also means that he has responsibilities as a landlord. He lives on one floor with his mother and family. The land value is equivalent to more than AUD $ 375 000 as demonstrated by a Property Valuation Report. The visa applicant also provided property documents indicating permission to build a house on land in Kathmandu and a land ownership registration certificate. The visa applicant also submitted bank documents from the Citizens Bank showing fluctuating amounts between 400 000 and 500 000 Nepalese rupees. In addition he has shares and stakes in other businesses, as evidenced by a statement from Siddharta Capital.

20. The visa applicant was asked about his daily life and why he would return at the end of his visit. He said that he usually works every day in the office but because of COVID-19 he works at home. He said that he would return to Nepal as he has ‘mandatory’ responsibilities to his wife, children and mother. He and his sister both referred to spending time with extended family, friends and his community in the area as well.

21. The Tribunal accepts that the applicant has strong family and financial incentives to return to Nepal at the end of his visit in Australia.

22. Thirdly, the Tribunal has taken into account the character of the applicants, as an indicator of intention to comply with the law. The review applicant lives in North Rocks with her husband, and is an Australian citizen. Her sister Samita is an Australian permanent resident.The review applicant is a Billing Administrator at NSW Transport. Pay advice from NSW Transport was provided as evidence of her employment. Her husband, Ram Sharan Khahurel is a Senior System and Network Administrator at Fire and Rescue NSW. Bank documents demonstrated regular payments from Fire and Rescue NSW. Samita works at a materials company and her husband is a manager at Charlies Chargrill. The sisters confirmed that they would support the visa applicant in Australia. Bank statements were provided for the review applicant’s husband demonstrating a balance of approximately AUD $125 000.

23. The review applicant said that they understand that future visits by relatives would be prejudiced if the visa applicant did not return to Nepal at the end of his visit, or if he did not comply with visa conditions. She reiterated that she and her husband work for government agencies, and this means that they have a strict and serious attitude towards compliance with the law. Samita also said that the family follow all rules and regulations in Australia. She said that they would like the visa applicant to travel to Australia for occasions such as festivals and their children’s graduations in the future, so that they would comply with all laws to ensure this could happen. The applicant’s representative told the Tribunal that he had explained to the review applicant the legal consequences of making false statements under the Statutory Declarations Act 1959. She was prepared to make the statutory declaration to the Tribunal confirming that her brother will return to Nepal in knowledge of these consequences. The Tribunal accepts that the applicants are law-abiding citizens and that they and other family members are responsible members of the community with stable income.

24. Fourthly, the sisters told the Tribunal at the hearing that they and their husbands would be prepared to provide surety to guarantee their brother’s return to Nepal at the end of the visit. This willingness does demonstrate a belief in his intention to stay temporarily in Australia.

25. Finally, the Tribunal has given significant weight to the fact that the applicants’ other relatives have all complied with visa conditions when visiting Australia. The applicants’ mother has visited Australia on three separate occasions as the holder of visitor visas. The most recent trip was on 21 February 2020. She departed on 20 March 2020. On all occasions she departed before her visa ceased and complied with visa conditions. Their father also visited on five occasions and always complied with the conditions of his visa. The last occasion was in 2016. The review applicant’s sister-in-law visited in December 2015, stayed for one month and returned to Nepal. Her in-laws visited in 2007 for about three months, and again in 2012 for six months, and again in 2017 for 6 months, and on all occasions complied with visa conditions. On the last occasion, her husband’s grandmother also visited.

26. Taking all these matters into account cumulatively, and in particular the strong incentives to return to Nepal, the character of the applicants and the fact that relatives have complied with visa conditions, the Tribunal is satisfied that the visa applicant intends to comply with visa conditions to which the visa is subject. The Tribunal is also satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

27. The Tribunal finds that the requirements of cl.600.211 are met.

    DECISION

28. 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.

    Jane Marquard
    Member