1512366 (Migration)

[2015] AATA 3653

1512366 (Migration) [2015] AATA 3653 (10 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Toyin Orioye

VISA APPLICANT:  Mr Simon Olufemi Olatoye

CASE NUMBER:  1512366

DIBP REFERENCE(S):  BCC2015/2087314

MEMBER:Nicola Findson

DATE:10 November 2015

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.

Statement made on 10 November 2015 at 10:30am

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 19 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 20 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 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 the delegate was not satisfied that the visa applicant intended a genuine visit and would abide by the visa conditions.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister and her family, who reside as citizens in Australia.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

8. 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)).

9. The visa applicant has never previously visited Australia and accordingly there are no considerations relevant to 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. The Tribunal has also considered all other relevant matters (cl.600.211(c)) as set out and discussed below.

12. The evidence before the Tribunal which is accepted by the Tribunal forms the basis of the following conclusions and findings:

    ·The visa applicant is a 59 year old man, who resides in Ogun State, Nigeria.  The visa applicant is married and has adult children. His immediate family all live in Nigeria.

    ·The review applicant is the brother-in-law and the sponsor of the visa applicant.  He is a 47 year old, who first arrived in Australia on a skilled visitor visa in 2009.  In 2011, the review applicant was granted a Residence visa.  He was granted Australian citizenship in 2012.

    ·The review applicant is currently working as a General Practitioner in Western Australia.

    ·The suggestion of the visa applicant visiting the review applicant and his family arose when the review applicant’s wife and children were in Nigeria for a holiday between November 2014 and January 2015.  It is the intention of the visa applicant to travel to Australia, for up to 1 month, to visit the review applicant and his family.

    ·The visa applicant has lived and worked in the South Western area of Nigeria for the last 27 years.  He is currently employed as a Head of Department for the Independent National Electoral Commission in Nigeria, and this employment is ongoing.  Upon his retirement, the visa applicant will be entitled to benefits and gratuities.

    ·The visa applicant is a respected member of his local church and his community.

    ·In March 2014, the visa applicant travelled to the United Kingdom for work purposes.  He has also previously travelled to Israel on two occasions in 2004 and 2005.  The conditions of the visas permitted to enter those countries were complied with and the visa applicant returned to his home country after each of these visits.

    ·There is nothing before the Tribunal to indicate that the visa applicant will have any incentives or reason to breach conditions on his visa prohibiting work and limiting study.

    ·The review applicant has indicated to the Tribunal that he understands that he has an obligation that the visa applicant fulfils the conditions attached to his visa.  He would not have invited the visa applicant to visit his family in Australia if he had any doubt as to his character, and intent to comply with his visa requirements.

    ·The review applicant has other relatives who may wish to visit Australia in the future, and is aware that it will be difficult to sponsor them if the visa applicant does not comply with his visitor visa conditions. 

    ·The Tribunal accepts the review applicant’s evidence that the visa applicant will depart Australia after his holiday and return to Nigeria.

    ·The visa applicant will have limited living costs during his proposed stay, with accommodation and living expenses being provided for by the review applicant.  The Tribunal is persuaded that financial capacity in this regard has been demonstrated.

13. In considering the visa applicant’s claim to be a genuine visitor who will abide by conditions, the Tribunal has had regard to generalised statistical data available concerning visitors from Nigeria as well as Department of Foreign Affairs and Trade information concerning the economic and security situation in Nigeria.  Given his personal circumstances, the Tribunal is satisfied that the visa applicant has no intention of leaving his life and loved ones in Nigeria to remain in Australia.  The evidence before the Tribunal is that the visa applicant has a settled and stable life in his home country.  He lives with his wife and children there; he has a good job, which will reward him with benefits and gratuities when he retires; he is involved in his local church and is well regarded in his community.  The visa applicant does have a good reason to visit Australia – to spend time with the review applicant and his family.  But, the Tribunal is satisfied that the visa applicant does have very strong personal ties to Nigeria, which would encourage him to return there.      

14. Taking into account all of the evidence before it, including evidence that was not previously available to the delegate at the time of decision, the Tribunal is satisfied that the visa applicant genuinely intends to stay in Australia temporarily while he is the holder of a visitor visa and will comply with all relevant conditions imposed on the visa.  The Tribunal is satisfied that after a visit to see the review applicant and his family, the visa applicant will depart Australia before his visa ceases and return to Nigeria.

    CONCLUSIONS

15. 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

16. 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.

    Nicola Findson
    Member