1514913 (Migration)

[2015] AATA 3656

1514913 (Migration) [2015] AATA 3656 (17 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Michael Kipsang Selembu

VISA APPLICANT:  Ms Mary Jerop Selembu

CASE NUMBER:  1514913

DIBP REFERENCE(S):  KE01005103-K

MEMBER:Adrian Ho

DATE:17 November 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; and

·cl.600.212 of Schedule 2 to the Regulations.

Statement made on 17 November 2015 at 5:49pm

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 6 October 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 3 September 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 Tourist 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.600.212.

5. The review applicant appeared before the Tribunal on 17 November 2015 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 her citizen brother. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)).

10. The visa applicant has never held a visa for Australia and there are no relevant considerations in this regard.

11. 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.600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

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

    Findings

13. The review applicant – the applicant – gave clear, transparent, frank and fluid evidence at hearing and the tribunal finds him to be a credible witness.

14. The tribunal accepts that he will assist his sister, and her husband and children, if they are granted visas with the finances necessary for their visit.  The tribunal accepts that the visa applicant has access to a modest sum of money in Kenya and that the applicant, based on his financial documents submitted, is well-positioned to cover the costs of a visit of around 5 weeks, and up to 3 months.  The tribunal accepts that the visa applicant and her family have access to discounted fares through another brother’s work at Qatar Airways and that all visitors will stay with the applicant, and have free accommodation.

15. The tribunal is satisfied that the visa applicant has access to adequate means to support herself during the period of intended stay, and she meets cl.600.212.

    Genuine visit

16. Further, the tribunal considers that the delegate’s written reasons appear to attempt to engage the criterion in cl. 600.211.

17. The tribunal has accessed movement records for the applicant’s parents and on that evidence, both his mother and father have made compliant visits to Australia in recent years, as did his sister, Florence.

18. The tribunal accepts that his family are Kalingins from outside Nakuru in Kenya and accepts that they faced no direct threat of harm during the 2008 election violence because they lived in an entirely Kalingin rural area.

19. Based on the applicant’s fluid oral evidence, the tribunal accepts that he has a brother living in Qatar and a sister who is a German citizen.  The tribunal accepts that the family own and farm substantial land outside of Nakuru and live a comfortable middleclass life.

20. The tribunal considers that the multiple compliant visits by close family members underlines that members of the family generally have not sought to take advantage of adverse events in Kenya, such as the 2008 election violence and the more recent attacks by Al-Shabab, to seek to prolong their stays in Australia.  The tribunal accepts that members of the family have no reason to anticipate or fear harm in Kenya.  The tribunal accepts they have no distinct need to work or study in Australia.

21. The history of compliant visits of close family should weigh in favour of the applicants.  The applicant’s offer to place a security of $10000 for his sister’s visit provides a degree of additional confidence.

22. For the above reasons the Tribunal is satisfied that the visa applicant intends to comply with the conditions of a visitor visa and 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.

23. The tribunal has processed this case on an expedited basis as the visa applicant wishes to attend her brother’s wedding and graduation ceremonies.

    DECISION

24. 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.600.212 of Schedule 2 to the Regulations.

    Adrian Ho
    Member