1508513 (Migration)

[2015] AATA 3556

1508513 (Migration) [2015] AATA 3556 (14 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmed Saeed Ahmedin

VISA APPLICANT:  Mr Nesredin Saeed Ahmedin

CASE NUMBER:  1508513

DIBP REFERENCE(S):  BCC2015/1506867

MEMBER:Mary-Ann Cooper

DATE:14 October 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 14 October 2015 at 3:20pm

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 5 June 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 26 May 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 applicant genuinely intended a temporary stay.

5. The review applicant appeared before the Tribunal on 12 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the visa applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

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

9. 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)). There is no evidence that the visa applicant has previously travelled to Australia and thus there is no evidence of non-compliance with previously held visas to Australia (cl.600.211(a)).

10. 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.

11. As indicated in his visa application, the visa applicant is an Eritrean citizen, born in 1980. There is no information before the Tribunal suggesting that the visa applicant would engage in any work, study or training in Australia for more than three months. Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa conditions 8101 and 8201. In the circumstances of this matter, the Tribunal has carefully considered whether the visa applicant intends to comply with condition 8531. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

12. As recorded in the delegate’s decision, a copy of which was supplied with the review application, the delegate was not satisfied that the visa applicant had demonstrated sufficient ties to Qatar, other than his employment, that would encourage him to depart Australia within the validity of his visa. In addition, the delegate considered there was insufficient evidence of the relationship between the review and visa applicant. Consequently she was not satisfied that the visa applicant genuinely intended only a temporary visit and therefore the visa application was refused.

13. Prior to the hearing the review applicant forwarded a submission to the Tribunal explaining that he had been born in Ethiopia and his family had fled the war and settled in Sudan, where his brother was born. He attached certified translations of his and the visa applicant’s birth certificates and bank statements demonstrating the regular deposits of salary into the visa applicant’s bank account. He also included documents that had also been supplied with the visa application.

14. At the hearing, the review applicant told the Tribunal that he had come to Australia in 2000 on a spouse visa and lives with his wife and children in housing commission accommodation. As confirmed by Departmental records, he is now an Australian citizen. In addition to the visa applicant in Qatar, he said he had one brother in Sweden and another brother, three sisters and his father in Sudan. He said he had last visited his family in Sudan in 2013 and had stopped over briefly in Qatar to see his brother, but otherwise had not seen him for several years. The Tribunal queried the birth certificates provided, noting that the mother’s names on the birth certificates for each of them was different. He said his mother had died and the visa applicant’s mother was his father’s second wife. He said the purpose of the trip was for his brother to meet his children. He said he would like to stay for up to two months and confirmed that he would pay a bond if the Department required it.  When asked about the visa applicant’s ties to Qatar, he said his job is very important to him and has many benefits attached such as a car and accommodation. He said his brother would not leave that position for uncertainty in Australia. He explained that he is a qualified engineer but has been unable to work as such in Australia and his brother would not abandon the certainty of his good job in Qatar for which he was paid well. On the contrary, the review applicant said he hoped to get a good job though his brother in Qatar because of the opportunities opening up due to the scheduling of World Cup in Doha. He also told the Tribunal that his brother had a young lady he was going to marry and that the brothers were looking forward to all being together again in Qatar at some time in the near future for the wedding.

15. The Tribunal invited the review applicant to comment on the Department’s non-return rates report[1] which indicates that persons from Eritrea are more likely than persons from many other countries not to return to their home country after travelling to Australia on a visitor visa. The Tribunal observed that this indicated the visa applicant might have more incentive to remain than return to Qatar in compliance with his visa conditions. The review applicant said that if his brother lived in Sudan there might some cause for concern because life there was miserable, but his brother had a good job and a good life in Qatar and he was sure he would return in compliance with his visa conditions. He confirmed that he was willing to pay a bond to secure his brother’s departure.  

    [1] Dept. of Immigration. Modified Non-Return Rate Quarterly Report Ending at 30 June 2013

16. The Tribunal also spoke to the visa applicant. His evidence as to the family composition and explanation for the differences in the birth certificates was consistent with that of the review applicant. Also consistently, he told the Tribunal that he wanted to come to Australia to visit him and his family. He said he wanted to come for one month because he needed to get back to his work. He said he was fully able to support himself and would stay with his brother while in Australia. As noted above, the Tribunal observed the relatively high non-return rate for Eritrean nationals on visitor visas, and suggested that this tended to indicate that he may have more incentive to remain in Australia rather than depart in compliance with the visa’s conditions. He responded that his situation is different because he lives in Qatar and has a very good job. He said that he has someone in Qatar who he wants to marry. He also indicated that he wishes to return to study and complete his master’s degree. He maintained that for these reasons he would depart Australia in compliance with any visa conditions that applied.

17. The Tribunal found the applicants to be frank and credible. It accepts the visa applicant’s stated reasons for wishing to visit Australia and, in particular, his desire to see various family members.  The Tribunal attaches significant weight to the visa applicant’s employment and the presence of several other family members overseas as incentives for him to return at the end of his proposed stay.

18. The Tribunal has carefully considered the circumstances of this case overall, including the non-return rates for Eritrean nationals, however it gives greater weight to the oral and documentary evidence concerning the personal circumstances of the applicants. On this basis it is satisfied that the visa applicant genuinely intends to visit Australia temporarily for the purpose of visiting his brother and will comply with his visa conditions (cl.600.211(b) and (c)).

    CONCLUSION

19. 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

20. 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.

    Mary-Ann Cooper
    Member