1512808 (Migration)

[2016] AATA 3413

1512808 (Migration) [2016] AATA 3413 (2 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Maureen  Chinenye Ilechukwu

VISA APPLICANT:  Mr Celestine  Collins Ifiorah

CASE NUMBER:  1512808

DIBP REFERENCE(S):  BCC2015/2164042

MEMBER:Suhad Kamand

DATE:2 March 2016

PLACE OF DECISION:  Sydney

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 02 March 2016 at 9:21am

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 24 August 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

2. The visa applicant applied for the visa on 28 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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant (being the sponsor and sister of the visa applicant) appeared before the Tribunal by video-link from Brisbane on 1 March 2016 to give evidence and present arguments. She gave phone numbers for the visa applicant and her husband who she indicated are available and willing to give evidence to the Tribunal if required.

   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 family, namely his sister (the review applicant), and holidaying 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. There is no evidence that the applicant has previously travelled to Australia. Accordingly, the Tribunal cannot assess his level of compliance with any prior Australian visa.

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 must also consider all other relevant matters (cl.600.211(c)).

12. In support of the review application the review applicant provided the Tribunal with a copy of the delegate’s decision record. In that decision record the delegate reasoned that: while the visa applicant has family in Nigeria, those family ties are not a strong indicator that he genuinely intends to stay temporarily in Australia; he has limited financial commitments to abide by the conditions of her visa and limited financial incentives to return to Nigeria; the applicant’s employment ties in Nigeria do not provide a strong commitment for him to abide by the conditions of the visa applied for or to depart Australia within the validity of his visa. On the evidence advanced the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia. It is noted also that the delegate’s decision record refers to the visa applicant being 28 years of age. However this is incorrect. The visa applicant’s identity documents and application form identify him as being born in August 1978.The Tribunal finds that the visa applicant is aged 37.

13. The applicant is a Nigerian national[1]. In his visa application form he indicates that: he would like to visit Australia between 14 August and 14 November 2015, a period of 3 months, to visit family and enjoy a holiday in Australia, noting that this period is the only period in which he can secure leave from work; his wife and two sons, born in April 2012 and March 2014, will remain in Nigeria for the duration of his proposed visit; he has his Australian citizen sister (ie the review applicant) residing in Australia, who he intends to visit, as well as a niece residing in Victoria.

    [1] Certified copy of Nigerian passport provided, folio 25, BCC2015/2164042

14. Regarding his employment he indicates that he is a Manager at Borec Services and Investment Ltd where he has been employed since July 2012.

15. Regarding his financial capacity to support his proposed visit he indicates that he has some savings but he will also be supported by his sister in Australia who will cover “all costs”.

16. In his application form he also indicates that he has previously applied for a visa for Australia. In a written statement to the Tribunal he elaborates that when he was a graduate engineer in Nigeria work was hard to find so he was looking at changing his career to nursing and sought to study in Australia (in 2011), that visa application being rejected; subsequent to that he secured a very good job in Nigeria in a telecommunications firm which pays well by Nigerian standards such that he is no longer considering a career change; he has made enough money to buy land as well as having an inherited property he plans to develop soon; he has no reason or incentive to breach his visa conditions.

17. The above information regarding the visa applicant’s prior application for an Australian Student visa is consistent with Department records which indicate that the visa applicant applied for a Student visa in November 2011 and that application was refused in February 2012. Department records indicate that the visa applicant had completed a Bachelor of Engineering and Chemical Engineering in Nigeria and was seeking to undertake a Certificate III in Aged Care and Diploma of Nursing at TAFE in Australia. He was, in relation to that application, found to not be a genuine applicant for temporary stay. The review and visa applicant were forthcoming in offering information to the Tribunal regarding the above application and its reasons for refusal without prompting from the Tribunal.

18. The sponsorship form, completed by the sponsor/review applicant indicates that the sponsor: is the sister of the visa applicant; has previously sponsored her sister to visit Australia between February and May 2015; is employed as an Administrator at Emerald Hospital in Queensland, a position she has held for around 2 years and 5 months. A copy of her Australian passport issued in May 2013 is also on file, as well as evidence of her pay./

19. Documentation provided in support of the application includes birth records for the applicant’s children, those records referring to the applicant as an Engineer and the children’s religion as “Christianity”, identity documents for the applicant and sponsor; a letter from the visa applicant’s employer, dated 10 July 2015 approving the applicant’s leave between 10 August and 13 November 2015, with an expected resumption of employment date being 16 November 2015; payment slips from the visa applicant’s employer;  bank records for the visa applicant;

20. Additional documentation provided to the Tribunal in support of the review application comprised: evidence of the review applicant’s marriage to Ikena Ilechukwu in Nigeria in 2004, identified as a medical practitioner; a deed assigning a plot of land to the visa applicant in November 2014 in Ogun State, Nigeria; a letter in support of the applicant from the visa applicant’s brother-in-law (husband of the sponsor), identified as an Obstetrician of the Emerald Medical Group (letter provided on the letter head Emerald Medical Group); a letter from the sponsor vouching for the visa applicant’s sincerity and integrity and indicating her willingness to provide a security bond, emphasising that her sister has previously visited on 2 occasions without breaching any visa conditions. This has been verified by the Tribunal with Department records in respect of the review applicant’s sister revealing her to have visited Australia on two occasions, once in 2010 and once in 2015, departing Australia on both occasions within the validity of her Tourist visa.

21. The visa applicant also provided a written statement which, in addition to the content referred to in paragraph 16 above, added that:  the delegate’s decision wrongly identifies his age and date of application; he has a wife, 2 children and 7 siblings residing in Nigeria; he has heard about some exciting tourist attractions in Australia which is the main reason he hopes to visit Australia. This was also emphasised in the review applicant’s oral evidence to the Tribunal.

22. In giving her oral evidence to the Tribunal the review applicant impressed the Tribunal as credible and convincing. Her evidence regarding the visa applicant’s circumstances in Nigeria were given without hesitation and were consistent with the written material submitted in respect of the visa applicant’s: ongoing marital relationship; his family composition including the age of his children young children born in 2012 and 2014; his 7 siblings who remain in Nigeria; his employment and income; his ownership of 2 properties in Nigeria and his intentions to develop one of those properties. She informed the Tribunal that her husband returns to Nigeria every year, leaving her to look after their 2 children, and it is not unusual culturally for Nigerian men to travel while their wives look after the family. Regarding the visa applicant’s proposed visit of around 3 months, she told the Tribunal that his wife probably won’t let him stay for more than 6 weeks, but that while he is away he will be paid leave entitlements by his employer in Nigeria, his wife will continue to run a small grocery store, and his wife’s family will assist his wife with the care of the children, which is not unusual in Nigerian culture. The evidence provided gave the impression that the visa applicant lives a comfortable life in Nigeria surrounded by a large extended family as well as dependent family members comprising his wife and 2 young children, financially supported by inherited and purchased property and by a well-paid job he has held since 2012.

23. The review applicant informed the Tribunal that she has recently returned from a 6 week trip to Nigeria, which she undertook with her husband and their two young children. She said that this was her first opportunity to visit Nigeria since 2011. She said that, while she saw the visa applicant on that occasion, she and her husband have spoken a lot to him about the sights and activities available in Australia, and he remains keen to come and visit. She said that for herself and her husband, as well as the visa applicant, the majority of their family ties are in Nigeria. The Tribunal accepts that the visa applicant has a large number of close, including dependent, family members in Nigeria.

24. The Tribunal put to the review applicant that the most recent report of the Australian Department of Foreign Affairs and Trade (DFAT)[2] reports that Nigerians in Nigeria generally have poor access to health care and poor health outcomes, and low rates of education participation. It also identifies economic difficulties and ongoing security concerns in both the north and south of Nigeria. The Tribunal explained that it must consider whether these factors may provide the visa applicant with an incentive to work or remain in Australia beyond the visa period which may apply to his visa, and whether these factors may be a disincentive for him returning to Nigeria.

    [2] Country Report Nigeria, dated 10 February 2015

25. In response the review applicant offered that, while there are random security breaches in Nigeria, they are infrequent. Further, she and her family, including her young children recently visited the part of Nigeria where the visa applicant lives. They remained there for 6 weeks. She said that she would not have taken her children there, nor would she have remained for 6 weeks, if there was any reason to feel unsafe there. She emphasised that her family has lived in the part of Nigeria where her brother lives for many years and have never experienced any problems. She said that, in relation to health and education, these are issues affecting Nigeria on a general level, however her family has always had sufficient funds to afford education and medical services and all of her siblings have received a tertiary education in Nigeria, including the visa applicant.

26. In other relevant considerations, the review applicant told the Tribunal that her niece is currently studying in Victoria, and has married and had a child there. This niece is the daughter of the sister who visited from Nigeria in 2010 and 2015. She told the Tribunal that she and her husband each have many family members living abroad. They also have important jobs – her husband being a doctor practicing in Queensland and herself working in a hospital. She said that they would never allow their reputations to be compromised by a family member breaching their visa conditions. She said that she is also aware that if one family member breaches their visa conditions it will make it difficult for other family members to visit. She was convincing in her evidence and impressed the Tribunal as being genuine in her insistence that she would never allow a family member to breach their visa conditions and thereby compromise the reputation of herself and her husband.

27. Considering all the evidence before it, and having had the benefit of speaking directly with the sponsor, the Tribunal considers the evidence before it, in its totality, to be convincing in indicating a genuine intention on the part of the visa applicant to stay temporarily in Australia for the purpose for which the visa is granted. Specifically, taking into account the cumulative considerations above and 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 the other relevant matters detailed above, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

28. 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

29. 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.

    Suhad Kamand
    Member