1505448 (Migration)

[2015] AATA 3223

1505448 (Migration) [2015] AATA 3223 (27 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Stavros Kyrifidis

VISA APPLICANT:  Ms Tsehaynesh Haile Abebe

CASE NUMBER:  1505448

DIBP REFERENCE(S):  BCC2015/1008868

MEMBER:Karen Synon

DATE:27 July 2015

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 27 July 2015 at 1:36pm

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 1 April 2015 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 March 2015.  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 she was not satisfied that the visa applicant intended only a genuine temporary stay in Australia.

5. Mr Stavros Kyrifidis, the visa applicant’s husband, applied for review of the primary decision on 21 April 2015.  A copy of the department’s decision was provided to the Tribunal.

6. The review applicant appeared before the Tribunal on 27 July 2015 to give evidence and present arguments.  The Tribunal also received oral evidence from the visa applicant via telephone from Ethiopia, his brother Mr Konstantinos Kyrifidis, his sister Mrs Penelope Kyrifidis-Hajiantoni and the visa applicant’s brother-in-law, Mr Wayne Gale.  The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages when taking evidence from the visa applicant.

7. The review applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.

8. A submission was received prior to the hearing which stated that the applicants met online in mid-2013, married on 14 October 2014 and lodged an offshore Partner visa application on 14 December 2014.  They have not been able to spend much time together due to the review applicant’s busy transportation business in Australia in which he works long hours.  The review applicant has only made two short visits to Ethiopia.  The applicants applied for a visitor visa to allow them to spend more time together while waiting for the processing of their Partner visa application lodged offshore.  A previous visa the visa applicant lodged on 19 December 2014 was refused.  It was contended that the delegate placed undue weight on the fact that the visa applicant is in voluntary rather than paid work and gave little weight to the fact that the applicants have applied for an offshore partner visa requiring the visa applicant to depart Australia in order to be granted the visa.  This is unequivocally strong incentive for the visa applicant to abide by the conditions of her visitor’s visa and department policy supports the grant of short visits by visa applicants following offshore partner visa applications.  The visa applicant receives financial support from the review applicant allowing her to maintain a reasonably comfortable lifestyle and does voluntary work.  It was submitted that the visa applicant has a firm, genuine intention to only stay in Australia temporarily.  The following factors were highlighted:

   Ø  The visa applicant has lodged an offshore Partner application and needs to be offshore when the decision is made;

   Ø  The review applicant is willing to lodge a bond of between $5,000 and $15,000 as assurance that the visa applicant will abide by her visa conditions and the visa applicant would not risk her husband forfeiting that amount; and

   Ø  The visa applicant’s immediate family members reside in Ethiopia with the exception of a half-sister who lives in Australia.  The visa applicant’s mother is elderly and under the care of the visa applicant and her two brothers.

9. It was further submitted that the applicants are aware that the imposition of Condition 8503 means that an onshore partner application visa will not be an option.  The applicants request a visa of “no longer than three months” to allow them to spend time together while awaiting the decision on their Partner visa application.

10. In support of this submission the following relevant documents were provided:

    ·A copy of the review applicant’s passport, boarding passes and ticket receipts verifying his travel to Ethiopia on two occasions in 2014 and 2015;

    ·Copies of 6 Western Union money transfers from the review to the visa applicant; and

    ·Copies of 24 photos of the review and visa applicants together including at their wedding.

11. In summary the Tribunal received the following relevant evidence from the review applicant:

    ·He was introduced to his wife, the visa applicant, by his friend Wayne Gale with whom he was working at the time.  He is married to the visa applicant’s sister.  They started talking online and via Viber and Skype.  Both the review and visa applicants are of the Orthodox faith and the visa applicant speaks English.  He has been advised that the waiting period for partner visas is 2 years’ minimum.  He lodged the application in December last year and has not been asked to provide further information.

    ·He is prepared to pay a bond of up to $15,000.  He is happy with and understands that should she be granted a visa it is likely to have Condition 8503 attached which means she will not be eligible to make any further visa applications onshore.  He was categorical in his evidence that the visa applicant will not overstay her visa and he is fully aware of the implications of her breaching any visa conditions.

    ·The visa applicant has had 3 visitor visas refused.  The first was in July 2014 when Wayne Gale sponsored her to assist with the birth of his second child.  The second was lodged by the review applicant and refused.  The third is the subject of this review. 

    ·Invited to comment on the discrepancies referred to by the delegate in the decision under review it was explained that at that time of the first application the review applicant and the visa applicant were not in a relationship.  They had commenced talking but did not consider themselves to be in relationship.  At the time the visa applicant’s half-sister was having emotional problems and it was hoped she could come to Australia to assist and support her sister during the birth.  The review applicant was not listed as a party on the application because he was in a formal relationship with the visa applicant.  As it happens Wayne Gale lost his job because he had no one to assist his wife (his mother had died suddenly) and he had to take time off work to do so.  He was subsequently unemployed for six months.

    ·The review applicant wants his wife to come to Australia for 2 to 3 months to spend time with him and meet his family.  As a small business owner it costs him $10,000 every time he goes to Ethiopia for a week including the cost of the travel and the loss of business income while he is away.  As his wife is scared of travelling and has never travelled before he will travel to Ethiopia to bring her here and will also return with her to Ethiopia at the conclusion of her visit.  Until a few months ago his wife had been volunteering at a relative’s workplace but is no longer doing this.

    ·The visa applicant lives with her mother and two brothers.  Both her brothers work on an irregular basis; one is a freelance photographer the other is a cabinetmaker.

12. In summary the Tribunal received the following evidence from the visa applicant:

    ·She wants to visit Australia to see her beloved husband and his family and also to see her older sister, her husband and children.  She wants to stay for a maximum of three months and understands that a condition will likely be imposed that she cannot apply for any other visas onshore.  She also understands her husband will likely have to pay a bond to ensure she leaves within the period of the visa should it be granted.  She holds an Advanced Diploma in Fashion Design but has no intention or desire to work or study in Australia; her sole intention is to see her husband, his family and her sister and her family.

    ·She met her husband via her brother-in-law when he was working with her husband.  He phoned her and they started talking and getting to know each other.  They sometimes email but usually talk using Viber or Skype.

13. In summary the Tribunal received the following evidence from the witness, Mr Wayne Gale:

    ·He introduced the applicants a couple of years ago.  He had met his wife, the visa applicant’s half-sister, via Facebook 5½ years ago and they married in 2011.  He knows the visa applicant very well having spent 5 ½ months in Ethiopia.  The visa applicant and his wife have the same father who is now deceased.  He and his wife have two boys aged 3 years and 12 months.  He has not introduced any other couples.  Mr Gale attests to the genuine relationship between the applicants and submitted that the visa applicant will do the right thing if she is granted a visitor visa as his wife did.  His wife was granted three visitor visas before being granted a spouse visa and never overstayed any of her visas. His wife now has permanent residency.

14. In summary the Tribunal received the following evidence from the review applicant’s brother Mr Konstantinos Kyrifidis and sister Mrs Penelope Kyrifidis-Hajiantoni:

    ·Both the review applicant’s sister and brother fully support the relationship between their brother and the visa applicant and are keen to have her visit Australia to meet them.  Penelope Kyrifidis-Hajiantoni’s three children, aged 7, 9 and 10, speak with the visa applicant regularly on Viber are very excited to meet her.  The review applicant’s sister spoke of how pleased the family is to see their brother happy saying he has worked hard so it is comforting for them to now see him happily married.  His older brother Konstantinos Kyrifidis spoke on behalf of himself and his elderly father saying the review applicant is a genuine, honest person with a high degree of integrity and a deep sense of family and social responsibility.  It is his opinion that his brother is fully committed to the relationship with the visa applicant and their family has accepted her as his wife.  They are both of the Eastern Orthodox faith.  He speaks of the applicant as delightful and well-spoken and his family are excited to meet her.  The family is fully aware of the support arrangements required and will support and welcome her when she arrives.  There is no doubt she will comply with the visa conditions and the family will support this.  The family wants to validate the relationship and believe it is solid and neither of them would put the spouse visa in jeopardy by not complying with all the visa conditions.  His three children aged 10, 13 and 16 have all spoken with the visa applicant on the Internet and call her Aunty Tess.  His father is very happy for Steve and Tess and is eagerly looking forward to meeting her.  The whole family lives in Dromana.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

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

18. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa: cl.600.211(a).

19. The visa applicant has never held a visa in relation to Australia or any other comparable Western country and therefore the Tribunal is unable to make an assessment on this.  However the oral evidence before the Tribunal, which it has no reason to doubt, is that her half-sister was granted three visitor visas while awaiting the outcome of her partner visa application and complied with the terms and conditions of these visas.  Accordingly, the Tribunal accepts that a member of the visa applicant’s immediate family has complied with conditions of previously held visas.

20. 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.

21. There is no information before the Tribunal to suggest that the visa applicant intends to work or study in Australia during a short visit of three months and it accepts the visa applicant’s evidence she has no plan or intention to do so.  The Tribunal discussed with both the visa and review applicant the likelihood that Condition 8503 would be imposed on the visa and accepts their categorical oral evidence that they would comply with this visa condition.  The Tribunal formed the view that the review applicant and the visa applicant will comply fully with any of the conditions of the visa, should be granted and that neither applicant would jeopardise the outcome of their pending partner visa application by the visa applicant remaining in Australia after the end of any permitted stay.  The Tribunal is also comforted by the oral evidence of the review applicant’s brother and sister who are also aware of the visa conditions likely to be imposed on the visa applicant and stated their support in ensuring she complies with these conditions.

22. The Tribunal has also considered all other relevant matters: cl.600.211(c).  In particular the Tribunal found the review applicant to be extremely honest, open, sincere and genuine in his evidence.  It also found the supporting evidence of his brother, sister and brother-in-law to be sincere and supportive of the relationship.  The Tribunal was able to take only limited evidence from the visa applicant due to difficulties establishing and maintaining a telephone connection to Ethiopia.  Nonetheless it accepts the evidence she provided as credible.

23. The Tribunal considers that the pending offshore partner visa application provides sufficient incentive for the visa applicant to return to Ethiopia within the period of any visitor visa should be granted.  Whilst it was not possible for the Tribunal, in the limited time available to it and on the information before it, to arrive at any finding about the genuineness of the relationship and the parties mutual commitment to a life together to the exclusion of all others, it did find the review applicant’s evidence to be persuasive and genuine and accepts that his only intention in inviting his wife to Australia is to spend more time with her and for her to meet his family.  The strong support of the review applicant’s family in Australia, as evidenced by their presence at the hearing, is also highly persuasive in the Tribunal’s decision.  While noting that the visa applicant is not working, lives with her mother and brothers in Ethiopia and appears to have no assets, in the circumstances of this case, the Tribunal considers that her incentive to leave Australia at the conclusion of a visitor visa given the pending partner visa application together with the strong support and understanding of the review applicant and his family of the likely visa conditions, to be more persuasive in arriving at a decision that the visa applicant’s intention to only visit Australia is genuine.

24. The Tribunal notes the delegate’s concerns about the previous visitor visas lodged by the visa applicant and in particular what she referred to as “discrepancies”.  After discussing this issue at the hearing and taking oral evidence on the matter from both the review applicant and the proposed sponsor of the first visitor visa application, Mr Wayne Gale, the Tribunal is satisfied by the responses and explanations provided.

25. In arriving at its decision the Tribunal has also given weight to the personal reference from the Honourable Greg Hunt, Member for Flinders and Minister for the Environment who writes that he has known the review applicant for over 20 years and considers him an upstanding member of the community.

26. Finally, the Tribunal notes the review applicant’s willingness to provide a significant bond to guarantee his wife’s return to Ethiopia within the period of the visa should be granted and suggests that his offer of a bond of up to $15,000 should be accepted by the Department as evidence of the review applicant’s genuineness and sincerity.  The Tribunal further notes that Condition 8503 will likely be imposed and further suggests that the visa be granted for a period of only 3 months.

27. 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

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.

    Karen Synon
    Member