1515141 (Migration)

[2016] AATA 4097

1515141 (Migration) [2016] AATA 4097 (8 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms ARMELLE EKOLLO

VISA APPLICANT:  Mrs Josephine Ngo Mbengue

CASE NUMBER:  1515141

DIBP REFERENCE(S):  BCC2015/2564919

MEMBER:Rachel Homan

DATE:8 July 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 08 July 2016 at 12:21pm

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 5 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 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). The delegate refused to grant the visa on the basis that the visa applicant did not meet 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 review applicant appeared before the Tribunal on 8 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

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. 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.

   Visa application

7. According to information provided in the visa application, the visa applicant is a 58 -year-old widowed woman from Cameroon. The visa applicant indicated that she wished to visit Australia to spend time with her daughter, the review applicant. The visa applicant indicated that she wished to remain in Australia between October 2015 and May 2016 and would be supported financially during her stay by her daughter and her partner. The visa applicant identified two adult children as family members not travelling to Australia and claimed to have been employed as a teacher in Cameroon for the past 34 years.

8. The delegate refused to grant the visa on the basis that the visa applicant had not provided evidence in support of her claims.

   Review application

9. At the time she applied for review, the review applicant submitted to the Tribunal a copy of her birth certificate, Australian passport, identification documents for her Australian partner, recent payslips for her and her partner and a Form 1149 Application for Sponsorship for Sponsored Family Visitors.

10. According to information contained in the sponsorship form, the review applicant is employed in IT library services at the University of Newcastle and is presently residing in North Gosford. The review applicant declared that she had previously sponsored her brother for a short visit between 25 December 2013 and 6 January 2014. The review applicant signed the sponsorship undertaking declarations relating to security bonds and sponsorship limitations.

11. The review applicant also submitted to the Tribunal an untranslated employment certificate for the visa applicant issued by the Cameroon Ministry of Basic Education, dated 21 September 2015.

12. The review applicant and her partner also provided written submissions addressing the decision to refuse to grant the visa. The review applicant stated that she hoped that her mother could visit, as she had two children, aged five years old and nine months, whom the visa applicant had never met in person. It was more practical for the visa applicant to visit the review applicant than it was for her to travel to Cameroon with her young children and partner.

13. The review applicant stated that the visa applicant is a teacher in Cameroon and intends to return to work after her visit to Australia. The review applicant stated that she and her partner had provided evidence of their income and a Form 1149 as proof that they were able to care for the visa applicant while she is in Australia. It was claimed that the visa applicant had no intention of overstaying her visit or failing to comply with her obligations whilst on holiday.

14. Information before the Tribunal indicates that the review applicant arrived in Australia in 2002 as the holder of a prospective spouse visa. The review applicant was later granted a permanent spouse visa and is now an Australian citizen.

    Tribunal hearing

15. The review applicant told the Tribunal that she had invited her mother to visit Australia because, for many reasons, it was more practical for her to travel to Australia than it was for the review applicant and her family to travel to Cameroon. The review applicant stated that she had expected to be asked for additional evidence in support of the application and was devastated when she received the news that the application had already been refused. The review applicant indicated that she had never had any immigration problems and had previously sponsored her brother for a short visit to Australia. The visa applicant was a teacher and had obtained leave permission but had not been able to submit this evidence before the application was refused. All the review applicant wanted was for her mother to meet her two daughters.

16. The Tribunal noted that the review applicant had submitted to the Tribunal an untranslated letter of employment for the visa applicant and had the interpreter translate its contents. The letter indicated that the visa applicant is a primary school teacher and had been employed in the position of Deputy Director at Public School Group 1A Ebolowa since 3 September 2015.

17. The review applicant explained to the Tribunal that the visa applicant had been employed as a primary school teacher for over thirty years but as a public servant was moved between schools on a regular basis. Although she had only held her current role since September, she had been employed in schools in Ebolowa for the last six years and had been employed by the Ministry of Basic Education for over thirty years.

18. The review applicant the Tribunal that she would like the visa applicant to visit Australia for approximately 6 months. The review applicant stated that tickets for travel to Australia were very expensive and the visa applicant would be living in the review applicant’s home during the entire period of her stay in Australia. The review applicant told the Tribunal that the visa applicant would mostly be spending time with her and her daughters. The review applicant was working casually and studying toward a Bachelor of Community Work and would find it easier managing her various responsibilities with her mother present.

19. The review applicant gave evidence that the visa applicant had not previously applied for an Australian visa and had not previously travelled outside Cameroon. The review applicant’s brother moved to the United States from Cameroon in 2013 and was studying at law school there. The review applicant confirmed that her brother had visited her from the United States at the end of 2013.

20. The visa applicant has three other children remaining in Cameroon including, a daughter, who is married with two young children and living in the capital approximately 2 hours from the visa applicant’s home. The visa applicant resides with her two younger children, one of whom is studying linguistics at university and is financially dependent on the visa applicant. The visa applicant’s son works as a chef. The visa applicant’s mother and six siblings also live in various parts of Cameroon.

21. The review applicant gave evidence that the visa applicant owns the home in which she and her two children live and receives a widow’s pension in addition to her salary as a teacher.

22. The review applicant told the Tribunal that the visa applicant’s main incentives for returning to Cameroon included her employment and the presence of her three children, mother and siblings. The review applicant also suggested that it was significant to the visa applicant that her husband was buried in Cameroon.

23. The Tribunal discussed with the review applicant the following information taken from the Department of Foreign Affairs and Trade’s Smart Traveller website regarding general country conditions in Cameroon:

    The security situation in northern Cameroon is being directly affected by the violent conflict in northern Nigeria. The Nigeria-based militant group, Boko Haram, is undertaking an extremely violent campaign of terror, centred in the Nigerian states of Adamawa, Borno and Yobe. Militants regularly cross the border to carry out attacks in Cameroon’s Far North, North and Adamaoua regions, including through the use of suicide bombers. In the Far North, suicide bombers have targeted large markets, hotels, parks and sporting venues.

    In response to these ongoing attacks, Cameroon has joined its neighbours, including Nigeria, in escalating military operations against Boko Haram. This has adversely affected security in the border regions of Cameroon. As a result there have also been movements of large numbers of people into and across parts of northern Cameroon, including internally displaced persons and refugees from Nigeria.

    … Criminal activity is a serious problem throughout Cameroon. Violent crime is common in residential centres and on rural highways. Armed highwaymen operate throughout the country. Armed banditry is common in the border areas with the Central African Republic. Carjackings, muggings, robberies and petty theft occur.

    … Medical facilities in urban centres in Cameroon are poor and are extremely limited in rural areas. Even in urban centres care may be affected by a lack of trained personnel, poor sanitation and outdated equipment. Pharmaceuticals are in short supply and poor quality substitutes and counterfeit drugs are often used. Up-front payment for medical services is usually required and the inability to pay will often delay treatment.[1]

    [1] accessed 8 July 2016

24. The review applicant responded that these same country conditions were the reason why it would be difficult for her and her two children and Australian partner to travel in Cameroon. The visa applicant, on the other, hand knows nothing different. The visa applicant has no motivation to remain in Australia. The only person she knows in Australia is the review applicant. Language barriers would be a problem and at her age, the visa applicant would have no incentive to work. The review applicant told the Tribunal that the visa applicant is a very Christian person and would not want to adversely affect the review applicant’s relationship with her partner by overstaying her visa.

25. The review applicant confirmed that she and her partner were willing to pay a bond or security and had discussed using the equity in their home to pay the bond, if required. The review applicant confirmed that she was working casually as a library assistant at the University of Newcastle and that her partner was employed on a full-time basis as a security manager at Gosford Hospital.

    Findings

26. The visa applicant has no Australian immigration history and has not previously travelled outside Cameroon. The Tribunal is, therefore, unable to draw any conclusions from this circumstance in considering whether the visa applicant intends to comply with the conditions which would be attached to the visa, if granted. The Tribunal has, however, placed weight on the review applicant’s own good immigration history and the compliance with the conditions attached to his visitor visa, recently demonstrated by the review applicant’s brother.

27. The Tribunal now has before it evidence of the visa applicant’s employment in Cameroon. The Tribunal finds that the visa applicant has stable employment as a public school teacher and is able to support herself, and at least one of her adult children, financially on this income together with the widow’s pension she receives. The Tribunal accepts on the basis of the review applicant’s oral evidence that the visa applicant also owns the home in which she and two of her children reside.

28. The Tribunal finds that the visa applicant’s family ties to Cameroon far outweigh her family ties to Australia. The visa applicant has a dependent adult child and resides with another of her unmarried children. The review applicant’s oral evidence suggested that the visa applicant also had a close relationship with her eldest daughter, who is married with two children and who resides a two hour drive away in the capital. The visa applicant’s mother and a large number of siblings also reside in Cameroon.

29. The Tribunal accepts that the visa applicant’s personal circumstances in Cameroon provide her with a strong incentive to return at the end of the proposed visit.

30. Whilst the Tribunal accepts that the general security and social conditions in Cameroon are less favourable than those in Australia, the Tribunal accepts that the visa applicant’s age, language barriers and lack of connections in Australia would provide her with some disincentive to remain.

31. The Tribunal found the review applicant’s oral evidence to be credible and compelling. The Tribunal accepts that the visa applicant has a specific purpose for travelling to Australia and that the duration of the proposed stay is consistent with her circumstances and this purpose. The Tribunal accepts that the cost of travel, the lengthy separation from the review applicant, together with the financial support available to the visa applicant in Australia from the review applicant and her partner, suggest that a stay of up to 6 months is appropriate. The Tribunal has also placed weight on the sponsorship undertakings made by the review applicant and her expressed willingness to pay a security bond.

32. Having carefully weighed the evidence, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purposes of a family visit.

33. The Tribunal finds that the requirements of cl.600.211 are met.

    DECISION

34. 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.

    Rachel Homan
    Member