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1005458 [2010] MRTA  2152  (30 September 2010)

Last Updated: 8 October 2010

1005458  [2010] MRTA 2152  (30 September 2010)

DECISION RECORD

REVIEW APPLICANT: Mrs Ganga Kumari Timalsena

VISA APPLICANTS: Mr Yagya Prasad Dulal
Mrs Dhan Maya Dulal
Ms Rita Dulal

MRT CASE NUMBER: 1005458

DIAC REFERENCE(S): CLF2010/90693

TRIBUNAL MEMBER: Richard Derewlany

DATE: 30 September 2010

PLACE OF DECISION: Sydney

DECISION: The Tribunal remits the applications for Sponsored (Visitor) (Class UL) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 679 (Sponsored Family Visitor) visa:

• cl.679.224 of Schedule 2 to the Regulations.
  

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the visa applicants Sponsored (Visitor) (Class UL) visas under s.65 of the Migration Act 1958 (the Act).
2. The visa applicants applied to the Department of Immigration and Citizenship for Sponsored (Visitor) (Class UL) visas on 24 May 2010. The delegate decided to refuse to grant the visas on 3 June 2010 and notified the visa applicants of the decision and their review rights by letter dated 3 June 2010.
3. The delegate refused the visa applications on the basis that the visa applicants did not satisfy cl.679.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the expressed intention of the visa applicants only to visit Australia was genuine.
4. The review applicant applied to the Tribunal on 6 July 2010 for review of the delegate’s decisions.
5. The Tribunal finds that the delegate’s decisions are MRT-reviewable decisions under s.338(5) of the Act. The Tribunal finds that the review applicant has made a valid application for review under s.347 of the Act and r.4.12 of the Regulations.

RELEVANT LAW

6. The Sponsored (Visitor) (Class UL) visa contains the Subclass 679 (Sponsored Family Visitor) visa and the Subclass 459 (Sponsored Business Visitor) (Short stay) visa: item 1217A of Schedule 1 to the Regulations. The visa applicants only made applications in respect of the Subclass 679 visa.
7. The Subclass 679 visa is for people seeking to enter Australia for the purposes of visiting an Australian citizen or Australian permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the visa applicant, or for a purpose other than a purpose related to business or medical treatment. This visa subclass allows a relative (as defined in r.1.03 of the Regulations) or another permitted party (as specified in cl.679.214 of Schedule 2 to the Regulations), to sponsor the visa applicant. The criteria for a Subclass 679 visa are set out in Part 679 of Schedule 2 to the Regulations.
8. The primary criteria must be satisfied by all applicants for the visa.
9. Relevantly to this matter, a primary criterion to be met at the time of decision is that the visa applicant satisfies the Minister that the expressed intention of the visa applicant only to visit is genuine: cl.679.224.

CLAIMS AND EVIDENCE

10. The Tribunal has before it the Department’s file relating to the visa applicants.
11. The visa applications and accompanying documentation show that the review applicant is the daughter of the first and second named visa applicants and the sister of the third named visa applicant. The visa applicants have applied to visit the review applicant, her husband and their two young children.
12. The visa applicants provided documents certifying their dates of birth, and the birth registration of the review applicant. Other documents relating to the financial capacity of the review applicant and her husband were also submitted. The first visa applicant stated he was a farmer, the second visa applicant stated she was a housewife and the third visa applicant stated she was a student. No other evidence relating to the circumstances of the visa applicants was submitted with the visa applications.
13. Prior to the Tribunal hearing the Tribunal received submissions from the review applicant’s representative and further evidence, including:
    • Supporting letters from the first and third visa applicants, the review applicant and the review applicant’s husband.
    • Evidence of regular phone contact between the visa applicants and the review applicant.
    • A letter dated 24 June 2010 from Annapurna Bikas Bank Limited certifying the balance of the first visa applicant’s account at the bank as Rs 2.43 million (approximately AUD 38,000 at 23 June 2010).
    • A property valuation dated 24 June 2010 by the Administrative Officer of Hetauda Municipality, Makawanpur, Nepal, for property held by the first and second visa applicants.
    • A letter from Hetauda School of Management and Social Sciences dated 2 July 2010 confirming the third visa applicant’s study at the school and approval of 3 months leave.
    • Further evidence of the financial position of the review applicant and her husband, including property ownership in Armidale.
14. The submission highlighted, among other things, that the review applicant and her husband found it difficult to travel to Nepal at present given they had 2 young children; the first visa applicant’s youngest daughter would remain in Nepal with her grandparents; that the additional evidence showed the family was well established and had strong property and financial assets in the Nepalese context; that the third visa applicant had ongoing study commitments in Nepal; and that the review applicant’s husband had earlier sponsored his parents to visit Australia and they had returned at the end of their authorised stay. It was submitted that the further evidence and information established that the circumstances of the visa applicants were such that there were strong incentives for them to return to Nepal at the end of their proposed visit to Australia. The submission also indicated that the review applicant was in a position to provide a security bond if required, though it was submitted that the further evidence should satisfy a decision maker that a security was not required as an additional assurance that the visa applicants would return to Nepal at the end of their authorised stay.
15. The review applicant appeared before the Tribunal on 28 September 2010 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Keshav Kumar Timalsena, the review applicant’s husband.
16. The review applicant was represented in relation to the review by her registered migration agent.
17. The Tribunal explained the issue in the review and also that it needed to determine the ‘genuine visit’ issue in respect of each visa applicant.
18. The review applicant told the Tribunal that her family had always lived in the Hetaudi district. Her father farmed his own land, and was involved in growing seasonal and non-seasonal grains. He also bought grain such as rice and wheat from other farmers and sold it at the local markets as well as in other towns, depending on demand. He had done this all his working life. The land he farms lies approximately 15 minutes drive from Hetaudi, and the family’s house is in the town.
19. The review applicant told the Tribunal that her sister, the third named visa applicant was studying to be a teacher. She had organised with her college to obtain 3 months leave and to resume her studies on her return.
20. The review applicant had last visited her family in Nepal in October 2008. The plans in respect of the family’s visit to Australia are that they will mainly stay with the review applicant and her family in Armidale, because it was difficult for her husband to get much time off work, but they will also travel to visit Sydney for about a week. Her parents have travelled previously to India but her sister has not travelled outside Nepal.
21. The Tribunal asked the review applicant why she thought her parents and sister would return to Nepal after the proposed visit and not seek to remain in Australia She stated that her parents have significant property to look after, her father’s parents live in Nepal, and her youngest sister will remain in Nepal with her grandparents. She also stated that her parents have little English and the language barrier would not encourage them to stay. She stated her sister had specific study plans related to her goal of being a teacher and she would return to continue her studies.
22. The Tribunal raised the issue of country information which indicated that Nepal continued to experience significant political instability, and that this was especially so in the southern areas near the Indian border. The Tribunal indicated this raised a concern that the political instability in Nepal might encourage the visa applicants to remain in Australia. The review applicant stated that she understood it was important for the visa applicants to return and she believed they would because of the family and property ties. She was aware of the political instability in the country but did not think that her home town area had been significantly affected. Her father had not mentioned to her that he had experienced any specific problems and she believed he would have if that were the case.
23. The review applicant stated she understood that any visas granted would be subject to conditions and that her standing as a sponsor might be adversely affected if the visa applicant did not comply with conditions. She reiterated that she would ensure the visa applicant returned to their home country, but also stated she felt they would want to return because of their strong ties there. She also confirmed to the Tribunal that she and her husband were in a position to lodge a security bond if it were required.
24. The review applicant’s husband told the Tribunal that it was difficult for him and his wife to travel to Nepal at present and it would mean a lot for his wife to see her family. In addition, his wife’s parents had not yet seen their youngest grandchild. He confirmed that it was difficult for him to take a lot of leave but there were plans for the family to visit places like Sydney. He also stated that he held a senior and high profile position with the largest tomato greenhouse company at Guyra, and this meant he particularly appreciated the importance of his and his wife’s assurances that his wife’s family would return to Nepal at the end of their stay.

FINDINGS AND REASONS

25. As noted above, the issue in this matter is whether the Tribunal is satisfied that the visa applicants’ intention to only visit Australia is genuine as required by cl.679.224.
26. The Tribunal has before it considerably more documentary evidence regarding the visa applicants’ circumstances in Nepal than was provided to the Department. The Tribunal also found the review applicant and her husband to be credible witnesses and has given significant weight to their oral evidence regarding the intentions of the visa applicants in respect of the proposed visit.
27. As the visa applicants are members of the same family unit the Tribunal has focused on what the evidence establishes about their circumstances as a family when considering whether they each satisfy the requirements of cl.679.224. In that regard the Tribunal considers, for example, that the fact the second visa applicant is a housewife should not be an adverse factor in the Tribunal’s consideration, and that the circumstances of the third visa applicant are still significantly determined by those of her parents, given she is still under 18.
28. The Tribunal accepts that the review applicant and her husband are in a position to provide all necessary support including accommodation and general expenses for the visa applicants during their proposed stay. The Tribunal accepts that the visa applicants wish to visit the review applicant and her family in Australia, and that the visit is planned in the context that it is difficult for the review applicant and her husband to visit Nepal at present, given their young family and the review applicant’s husband’s work commitments. The Tribunal is satisfied that the purpose and duration of the visit, including the plan to undertake some travel to places such as Sydney, is consistent with a genuine visit.
29. The evidence before the Tribunal indicates the first and second visa applicants are well established in Nepal and that their financial circumstances are relatively strong. The Tribunal has given significant weight to the evidence that the first visa applicant’s bank account not only holds a relatively significant deposit but is also a regularly operated account. The Tribunal has also given significant weight to the evidence of property owned by the first and second visa applicants. The Tribunal considers this evidence, together with the evidence that the first named applicant is self – employed, and has been for a considerable period, as a farmer and grain seller, are factors that would strongly encourage the visa applicants to leave Australia at the end of their stay.
30. The Tribunal also considers that the first and second visa applicants have strong family ties in Nepal, namely their youngest daughter and also the first visa applicant’s parents. This evidence consequently establishes that the third visa applicant also has family ties in Nepal, namely her sister and grandparents. The Tribunal considers these are also factors that would encourage the visa applicants to leave Australia at the end of their stay.
31. The Tribunal has also given some weight to the evidence that the first and second visa applicant have previously travelled to India and returned to Nepal. The Tribunal has also given some weight to the evidence that the third visa applicant has specific study plans and that she had obtained 3 months leave from her course at the Hetauda School of Management.
32. Against the above the Tribunal considers that the visa applicants have family ties in Australia, namely the daughter and grandchildren of the first and second visa applicants, and the sister and 2 nephews of the third visa applicant, which are factors that might encourage them to remain in Australia. As discussed with the review applicant at the hearing, the country information also indicates that Nepal continues to experience significant political instability, and this is also a factor that might encourage the visa applicant to remain in Australia. The Tribunal accepts the review applicant’s evidence however that she is not aware that her family have experienced specific problems, and that her home town has not been significantly affected. The Tribunal considers that the factors which might encourage the visa applicants to remain in Australia are outweighed by factors such as their strong family ties in Nepal, and their strong and stable financial position and property assets. While bearing in mind that ultimately the onus is on the visa applicants to satisfy the Tribunal that they intend to only visit Australia, the Tribunal has, in reaching the above conclusion, given some weight in this specific case to the assurances of the review applicant and her husband regarding the visa applicants’ intentions.
33. For the above reasons the Tribunal is satisfied that the visa applicants’ intention only to visit Australia is genuine and finds that all the visa applicants do satisfy the requirements of cl.679.224.

CONCLUSIONS

34. For the reasons given above the Tribunal finds the visa applicants satisfy the requirements of cl.679.224.

DECISION

35. The Tribunal remits the applications for Sponsored (Visitor) (Class UL) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 679 (Sponsored Family Visitor) visa:
    • cl.679.224 of Schedule 2 to the Regulations.
      

Richard Derewlany
Member