1512069 (Migration)

[2016] AATA 3357

1512069 (Migration) [2016] AATA 3357 (25 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Matilda Blanton Gidisu

VISA APPLICANT:  Miss Eunice Gidisu

CASE NUMBER:  1512069

DIBP REFERENCE(S):  BCC2015/2203265

MEMBER:Tony Caravella

DATE:25 February 2016

PLACE OF DECISION:  Perth

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; and

·cl.600.232 of Schedule 2 to the Regulations.

Statement made on 25 February 2016 at 8:56am

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 15 August 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 30 July 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case, the visa 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 and cl.600.232 of Schedule 2 to the Regulations. In particular, the delegate found that, based on the evidence before her, she was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted, as prescribed in cl.600.211.

5. Further, in respect of cl.600.232, the delegate was not satisfied that the visa applicant has met the legal requirements in cl. 600.232 which prescribes the following:

   600.232

   [600.232] (1)    One of subclauses (2) to (4) applies.

   [600.232] (2)    The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and:

   (a)    a relative of the applicant; or

   (b)    a relative of another applicant who is a member of the family unit of the applicant; or

   (c)    a relative of another applicant in relation to whom the applicant is a member of the family unit.

   [600.232] (3)    The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who:

   (a)    is a member of the Commonwealth Parliament or a State Parliament; or

   (b)    is a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory; or

   (c)    holds the office of mayor.

   [600.232] (4)    The applicant is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.

6. Prior to the hearing, the Tribunal received copies of the following documents:

   ·    A certified copy of an entry in the register of births in the Republic of Zambia showing the visa applicant as born on 14 March 1986 to Samuel Blanton Gidisu and Comfort Atsem;

   ·    A certified copy of an entry in the register of births in the Republic of Zambia showing the review applicant, Matilda Blanton Gidisu as born on 20 November 1984 to Samuel Blanton Gidisu and Comfort Atsem;

   ·    A copy of a degree for a Bachelor of Science in Marketing issued to the visa applicant by the University of Professional Studies, Accra;

   ·    An employment contract showing a contract for employment between Amature Company Limited and the visa applicant;

   ·    A completed and approved Leave Request Form showing Amature Company Limited approved leave for the visa applicant from 1 March 2016 to 1 May 2016.

7. The review applicant, and her husband, appeared before the Tribunal on 23 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who spoke to the Tribunal by telephone from Ghana.  The Tribunal hearing was conducted with the assistance of an interpreter in the Ghanaian and English languages.

8. The review applicant was represented in relation to the review by her registered migration agent.  He participated in the hearing via telephone from Melbourne.

9. After outlining the procedural aspects of the hearing, the review applicant began by saying that when she applied for the visa for her sister, that is the visa applicant, the review applicant was pregnant.  She said she wanted the visa applicant to be with her in the lead up to the birth of her baby, and to help out for a short time after the birth.  She said that as a result of her pregnancy and circumstances, she forgot to include a copy of her birth certificate in with the application to confirm her familial relationship to the visa applicant.  The review applicant submitted that she considers the Department should have asked for a copy of it and she was disappointed that it did not.

10. The review applicant told the Tribunal that she and her husband moved to Perth from Melbourne in December 2015.  She said that her husband got a contract with Wood Group Kenny which operates in the oil and gas sector.  The review applicant also said that she is currently on maternity leave from her job.

11. The review applicant said that she is currently studying for her CPA and that she has exams in April 2016.  She said the plan is for the visa applicant to visit Australia for three months over this time to help with the baby so that the review applicant can focus on her CPA exams.  The review applicant told the Tribunal that the baby, Celine, was born on 17 October 2015.

12. The review applicant told the Tribunal that her sister lives and works in Tamale which is in the northern part of Ghana.  She said she has been working there since November 2015 and works in the field of marketing.  She said the visa applicant worked for a business called ‘Izone’ as a customer service/branch supervisor before this.  She said the visa applicant has a stable job in Ghana.

13. The review applicant referred the Tribunal to evidence indicating the visa applicant has eight siblings in Ghana and that the review applicant is the visa applicant’s only sibling who is not in Ghana.  She said the visa applicant helps in the care of their mother.

14. The review applicant referred to the invitation put to her that she provide a security bond of $15,000 in respect of the visa for which her sister has applied for.  She told the Tribunal that she and her husband cannot afford that money at the present time. 

15. The review applicant told the Tribunal that her sister has not previously travelled anywhere outside of Ghana.  She also submitted that she has not sponsored anyone to come and visit her in Australia before now, and that she wants to make sure that she keeps a good record and that the visa applicant would comply with visa conditions.

16. In respect of whether the visa applicant is presently in a relationship in Ghana, the review applicant said her sister split up from a boyfriend about one year ago.  The review applicant also told the Tribunal that she is involved with her church and has lots of friends in Ghana and that her mother and her life is there and that she is happy in Ghana.

17. The review applicant told the Tribunal that there is no war or political trouble in Ghana.  The Tribunal put it to her that country information for example from Amnesty International, indicates there was violence against women and girls in Ghana, and that its recent report refers to violence against women and girls remaining widespread and that victims were not protected with adequate protection and legal assistance to lodge complaints.  The review applicant responded by saying that her father brought up the family well and she had not observed the sort of trouble in Ghana.  She said her family was brought up in the capital Accra. 

18. The visa applicant spoke to the Tribunal by telephone she began her evidence by telling the Tribunal that she initially wanted to come to Australia because her sister was pregnant at the time, but now she wants to come to Australia and stay with her sister for about three months.  She said that since her sister, the review applicant, had moved to Perth from Melbourne, her sister does not have family support in Perth.  She said she would be able to stay, cook and look after her niece while her sister finished her studies. 

19. The visa applicant confirmed that she currently is employed by Amature Company Limited, and that before this she worked with Izone.  She described her current employer as being an engineering company and they fixed telephone lines.

20. The Tribunal referred the visa applicant to evidence held on the Department’s file,  specifically in her written application for a visitor visa (Form 1418) indicating that she had previously been refused a student visa in Australia.  The Tribunal invited her to comment on this.  The visa applicant said that she did apply for a student visa so that she could study nursing in Australia. She said that during the interview for the student visa, the departmental officer asked her what subjects she was going to do.  She said at that stage she had not checked the precise subjects she would be doing and was therefore unable to answer the departmental officer’s question.  She said she thinks the visa was refused on this basis.  She said her plan has now changed and she wants to visit Australia, but then return to Ghana to her job, and then maybe later she might apply for another student visa.

21. The tribunal referred to the copy of the visa applicant’s employment contract with Amature Company Limited which indicates her monthly salary is 800 Ghana cedis.  Noting that this equates to approximately AUD$279 per month, the Tribunal put it to the visa applicant that it had to consider whether a salary such as this which by Australian standards appeared quite low, would act as a disincentive to the visa applicant returning to Ghana.  The visa applicant responded that the cost of living in Ghana is less than in Australia and that she was able to live adequately on this income.

22. The Tribunal referred the visa applicant to whether she is currently in a relationship with anyone in Ghana.  She replied that she is not dating at the moment, and that her previous relationship which she said continued for three years, ended last year.  She added however that she has five sisters, and three brothers, and her mother still in Ghana.

23. She told the Tribunal that Ghana is a peaceful country, and that it has no food shortages, and it has water and electricity, and a good government.  The Tribunal referred her to country information indicating Amnesty International reports that violence against women and girls remains widespread in Ghana, and that Amnesty International found victims of violence were not protected or provided with assistance to lodge complaints.  The visa applicant replied by saying that while there may be some problems in Ghana, she generally found that men respect women there.  She also told the Tribunal that she is a strong Christian and has experienced no problems as a result of religion.  She referred to the Muslims and Christians living together without problems.

24. The Tribunal referred to the visa conditions which would apply in the event she was granted the visa which she seeks. In particular, it referred the visa applicant to the conditions which would apply if she is granted the visitor visa and which would prevent her from employment or study in Australia, or from a substantive visa, other than a protection visa, while in Australia, and that she must not remain in Australia after the end of the permitted stay.  She told the Tribunal she understands these conditions and that she would comply with them.

25. The visa applicant’s representative submitted that it appeared the Department applied a very high standard or burden of proof in this case.  He said it almost appeared to be the criminal test.  He submitted there is no evidence the visa applicant intends to work or study or to lodge a protection visa in Australia.  He also submitted that the review applicant’s father in law is a senior police inspector in Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The issues in this case are whether cl.600.211 and cl.600.232 are met.

    Does the applicant satisfy cl.600.211 of Schedule 2?

28. Clause 600.211 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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the visa applicant was subject; whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

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

30. 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)).

31. The evidence before the Tribunal, as submitted by the review applicant and the visa applicant, is that the visa applicant has not travelled outside of Ghana previously.  Based on this evidence, the Tribunal finds the applicant has not previously held a visa to enter Australia.  There is therefore no evidence of the applicant not complying with conditions of previously held visa(s).

32. 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.

33. The Tribunal relies on the evidence contained in the visa applicant’s written application for a Visitor visa (Sponsored Family Stream) held on the Department’s file and which indicates the visa applicant has a small sum of money available to her in her bank account and that this is to cover her visit to Australia.  It also accepts from her statement that the review applicant will be paying for the visa applicant’s return airfare and also covering all her living expenses and provide free accommodation during her stay.  The Tribunal also accepts the visa applicant will not be supporting anyone on Ghana while she is in Australia.  The Tribunal accepts the visa applicant’s written statement that during this time in Australia she plans daytrips with her sister and brother-in-law.   In this context, and having found the evidence of the review applicant and of the visa applicant, credible, the Tribunal accepts their evidence which is that the visa applicant will not work or study in Australia, and also understands that she is not entitled to a substantive visa, other than a protection visa, while remaining in Australia.  It also accepts that the visa applicant understands and has committed not to remain in Australia after the end of the permitted period of stay.  Having regard to all of this evidence, the Tribunal finds it is satisfied that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject.

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

35. In considering the application for review and cl.600.211(c), the Tribunal considered the Department’s policy guidance which is contained in the Department’s Procedures and Advice Manual (PAM3) which relevantly states the following in respect of cl.600.211(c):

    The ‘any other matter’ factor

    Some relevant considerations

    In establishing whether 600.211(c) is satisfied, relevant considerations of any other matter may include, but are not limited to:

    •Personal circumstances
    •Credibility
    •Purpose and period of stay
    •Previous immigration/travel history
    •Intel reports and profile.
    Personal circumstances

    Namely:

    •the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:
    •ongoing employment
    •the presence of close family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia
    •property, or other significant assets, owned in their home country and
    •whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance
    and
    •the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:
    •economic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia
    •economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.
    •the applicant’s personal ties to Australia, that is:
    •does the applicant have more close family members living in Australia than in their home country
    •is the applicant subject of adoption proceedings that have not been resolved in their home country
    •military service commitments
    •civil disruption, including war, lawlessness or political upheaval in the applicant’s home country.
    Note: If refusing a visitor visa in relation to the genuine temporary stay criterion, s65 delegates must take care not to confuse the applicant’s financial circumstances as an incentive to return and the applicant’s access to ‘adequate means of support’. They are separate factors and so must be considered separately.

    Credibility

    The applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application).

    Purpose and period of stay

    Whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with “tourism”).

    Previous immigration/travel history

    Previous immigration and travel history, such as:

    •previous visa applications for Australia
    •previous overseas travel, that is, has the applicant travelled to countries other than Australia.

    In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.

36. Having regard to the evidence before it, the Tribunal finds that the visa applicant holds a position working as an office assistant with her present employer, Amature Company Limited.  In the absence of any evidence to the contrary, the Tribunal finds the visa applicant has an employment contract with her present employer until 1 November 2018. The Tribunal accepts the visa applicant’s claim that although her salary may not be high by Australian standards, her cost of living in Ghana is also low in comparison to the cost of living in Australia. 

1. The Tribunal considered the visa applicant’s other circumstances in considering whether she genuinely intends to stay temporarily in Australia.  In this respect, the Tribunal accepts the visa applicant has her mother and 8 siblings living in Ghana and that her only sibling living in Australia is the review applicant.  It also finds that although the visa applicant is not presently in a relationship with anyone in Ghana, she has ties there, such as her connection with her church, and that this represents an incentive for the applicant to return to Ghana. 

2. The Tribunal considered the country information before it and which was put to the visa applicant.  It accepts the visa applicant’s, and the review applicant’s, evidence that Ghana is a relatively stable country without many of the problems that plague some other countries in Africa.  It accepts the visa applicant’s evidence that she has not experienced any problems or attacks for reasons of being a woman in Ghana, or for reasons of her religion, her political opinion, her nationality, or for any other reason.   

3. The Tribunal considered the evidence given by the visa applicant indicating that she has previously applied for a student visa to enter Australia to study nursing.  It accepts that application was refused, and that the visa applicant may still have an intention to reapply for another student visa in the future, but that for the time being she only seeks a visitor visa and that she claims she will return to Ghana and to her job there. The Tribunal found the visa and review applicants are both credible on this evidence and accepts that even though the visa applicant may have an intention to submit a student visa application sometime in the future, this does not mean that she therefore has an intention which is inconsistent with a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.  The Tribunal accepts that the visa applicant, and her sponsor, both understand and accept that the visitor visa which is the subject of this review would, if granted, be granted for a fixed period of time, and that the visa applicant will be required to leave Australia, and to apply for a student visa after leaving, if a she in fact decides to apply for a student visa.    

4. Having regard to all of the evidence before it and which is set out in the preceding paragraphs, the Tribunal finds that while the visa applicant has not previously travelled outside of Ghana, or to Australia in particular, and therefore cannot demonstrate a track record of compliance with visa conditions, she has provided considerable evidence to this Tribunal which supports her claim that she has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.

5. 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.

   Does the applicant satisfy cl.600.232 of Schedule 2?

6. As stated above, the delegate found the visa applicant failed to satisfy cl.600.232 of Schedule 2 to the Regulations. This provision can be satisfied when one of subclauses (2) to (4) applies (per cl.600.232(1)). In summary, cl. 600.232 (2) is met when the applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and is either a relative of the applicant; or a relative of another applicant who is a member of the family unit of the applicant; or a relative of another applicant in relation to whom the applicant is a member of the family unit. There is no evidence before the Tribunal to suggest the applicant satisfies cl.600.232(3) or cl.600.232(4), that is, the visa applicant is sponsored by a member of the parliament of the Commonwealth, State or Territory of Australia, or is sponsored by a person who holds the office of mayor, or the visa applicant is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.

7. Cl.600.232(2) refers to the applicant being sponsored by a ‘settled Australian’.  This term is defined in r. 1.03 to mean ‘lawfully resident in Australia for a reasonab​le period’.

8. Clause 600.232(2) also refers to the term ‘relative’.  This term is defined in r.1.03 as follows:

   relative, in relation to a person, means:
   (a)  in the case of an applicant for a Subclass 200 (Refugee) visa or a protection visa:

   (i)  a close relative; or
   (ii)  a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew; or
   (iii)  a first or second cousin; or

   (b)  in any other case:

   (i)  a close relative; or
   (ii)  a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

9. The term ‘close relative’ is defined in r.1.03 as follows:

   close relative, in relation to a person, means:

   (a)  the spouse or de facto partner of the person; or
   (b)  a child, parent, brother or sister of the person; or
   (c)  a step-child, step-brother or step-sister of the person.

10. The Tribunal finds based on the copies of birth certificates submitted to it and which are referred to above, that the review applicant and the visa applicant share the same biological parents and that they are therefore sisters. 

11. The Tribunal finds that the review applicant has provided a certified copy of a Certificate of Australian Citizenship (held on the Department’s file at folio 8) showing she acquired Australian Citizenship on 15 September 2010.  The Tribunal therefore finds that the visa applicant is sponsored by a settled Australian citizen.  The Tribunal finds the visa applicant’s sponsor was born on 20 November 1984 and that she is therefore at least 18. 

12. There is no evidence before the Tribunal to suggest the visa applicant satisfies cl.600.232(3) or cl.600.232(4), that is, the visa applicant is sponsored by a member of the parliament of the Commonwealth, State or Territory of Australia, or is sponsored by a person who holds the office of mayor, or the applicant is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.

13. For the reasons and findings set out in the preceding three paragraphs, the Tribunal finds that the sponsor in this case is a close relative of the applicant and that the applicant is sponsored by a settled Australian citizen, who is at least 18 and who is a relative of the applicant. The Tribunal therefore finds the visa applicant meets the criteria in cl.600.232(2), and therefore satisfies cl.600.232 of Schedule 2 to the Regulations.

    DECISION

14. 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; and

    ·cl.600.232 of Schedule 2 to the Regulations.

    Tony Caravella
    Member