1513322 (Migration)

[2016] AATA 3058

1513322 (Migration) [2016] AATA 3058 (19 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Eseoghene Gloria Chizelunwa

VISA APPLICANT:  Mr Akpobome Olotu

CASE NUMBER:  1513322

DIBP REFERENCE(S):  BCC2015/1888745

MEMBER:Nicola Findson

DATE:19 January 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.

Statement made on 19 January 2016 at 4:02pm

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 28 July 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 1 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. The review applicant appeared before the Tribunal on 19 January 2016, to give evidence and present arguments.

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 sister and her family, who reside as permanent residents in Australia.  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)). 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)).

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

    ·The review applicant is the sister and the sponsor of the visa applicant.

    ·The visa applicant is 27 years old, and a citizen of Nigeria.  His parents and 2 brothers, as well as his extended family, live in the Delta State of Nigeria.  The visa applicant also has a 1 year old son, who lives with his ex-partner in Nigeria.  It is his intention to travel to Australia, for up to 3 weeks, to visit the review applicant (the only sibling of the visa applicant who does not live in Nigeria), the review applicant’s husband and their children. 

    ·The review applicant is 29 years old and was granted Australian citizenship on 26 January 2014.  She first arrived in Australia on a student (higher education sector) visa in 2004.  In 2008, she graduated from the University of Western Australia with a Degree in Commerce and Marketing.  After that, she remained in Australia on a graduate visa, and completed a Diploma in Teaching.  The review applicant became a permanent resident of Australia in 2012.

    ·Since 2004, the review applicant has returned to Nigeria on a regular basis, to visit her family.   On a return visit in 2008, she met her now husband.  They married a year later.  Once they were married, the review applicant’s husband accompanied her to Australia, and they have since had 2 children, aged 5 and 2. 

    ·The review applicant is currently working as a teacher in Western Australia.  She has worked in this role for over 4 years.  Her husband is caring for their children and not currently working.

    ·The review applicant and her husband own a house together.

    ·With the exception of her sister in law, who is currently in Australia studying to become a dental assistant, the review applicant and her husband have no other family in Australia.

    ·The visa applicant has lived and worked in the United Arab Emirates since 2009.  After applying unsuccessfully on 2 occasions to follow in his sister’s footsteps and study in Australia, he took up an opportunity to study at the University of Wollongong in Dubai.   After graduating with a Degree in Engineering, in February 2014, he took up a role as a purchasing representative for New Khan General Trading Company in Dubai.   This employment is ongoing. The visa applicant is paid a monthly salary of AED$8000, plus bonuses, as well as provided with accommodation and transportation.  His employer is supportive of him taking leave to holiday in Australia and then returning to his role.

    ·The visa applicant does not intend leaving his job or Dubai in the near future.  Further, as long as he remains employed, his residence permit to remain in the United Arab Emirates will be renewed and remain valid.  He will, however, eventually return home to Nigeria. 

    ·The father of the visa and review applicants is a civil engineer and has accumulated a number businesses and properties over the years.  The visa applicant’s other brother’s work in their father’s businesses. The visa applicant has spoken of taking over the running of a water bottle factory, owned by his father, when he returns to Nigeria. 

    ·The visa applicant has only ever travelled outside Nigeria to the United Arab Emirates.

    ·The review applicant does not know why the visa applicant was refused a student visa, in 2007 and then again in 2008, by the Department.  The review applicant’s father wanted the visa applicant to get a good tertiary education abroad and used an agent in Nigeria to make application for the visa applicant to study in Australia.  The refusals to grant the visas were simply accepted by the family and the visa applicant went to study in Dubai instead. 

    ·The evidence before the Tribunal is persuasive that the visa applicant has a settled and happy life.  In Nigeria, he is surrounded by his family and friends; he has a young child; and his prospects for the future look bright.  He has gained a good education in Dubai and is currently gaining good work experience.  His tertiary qualifications and skills will enable him to return to Nigeria to successfully run a family owned business(es).

    ·There is nothing before the Tribunal to indicate that the visa applicant will have any incentives or reasons to breach conditions on his visa prohibiting work and limiting study.  He wants to spend time with the review applicant and her family, and that is all.

    ·Further, the visa applicant does not have any reason to fear returning to his home country and has no need for protection in Australia.

    ·The parents of the visa and review applicants have visited Australia on several occasions in recent years.  The parents-in-law of the review applicant have also visited Australia.  In 2013, the review applicant sponsored an older brother to visit her and her family in Australia.  On each of these visits, the visa conditions have been complied with. 

    ·The review applicant would like to continue to sponsor relatives who may wish to visit Australia in the future.  She is aware that it will be difficult to sponsor them if the visa applicant does not comply with his visitor visa conditions.  She has indicated to the Tribunal that she has no doubt that her brother will comply with his visa requirements.  She has been in Australia for 12 years; she has a good job; and she will ensure that her good record continues and that the visa applicant fulfils the conditions attached to his visa. 

    ·The Tribunal accepts the review applicant’s evidence that the visa applicant will depart Australia after his holiday and return firstly to the United Arab Emirates, and then eventually 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 privileged life in his home country.  He lives with his parents and brothers in a region that has not encountered any trouble; he has good job prospects, and he has a big circle of friends.  The visa applicant does have a good reason to visit Australia – to spend time with the review applicant and her 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.

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