1602015 (Migration)

[2016] AATA 4459

1602015 (Migration) [2016] AATA 4459 (28 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs AYISHA BUSHRA

VISA APPLICANT:  Master ZULFA SEMAN MOHAMMED

CASE NUMBER:  1602015

DIBP REFERENCE(S):  BCC2015/3721962

MEMBER:Mary Cameron

DATE:28 September 2016

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.

Statement made on 28 September 2016 at 12:30pm

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 11 January 2016 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 7 December 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 applicant intended a genuine temporary stay in Australia.

5. The review applicant appeared before the Tribunal on 27 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Muluka Bushra. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her family members in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. 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)).

11. The visa applicant has never been to Australia and therefore there is no evidence of any failure to comply with the conditions of any previous visa.

12. 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.

13. There is no evidence to suggest that the visa applicant is enrolled in any course of study or that she will work in Australia. There is no evidence before the Tribunal that the visa applicant would be entitled to a substantive visa, other than a protection visa, whilst in Australia. Based on the evidence before it, which is set out below, the Tribunal is satisfied that the visa applicant will not remain in Australia after the end of a permitted stay. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

14. The review applicant is a forty three year old Australian citizen of Ethiopian background. She lives in Williams Landing, Victoria with her husband. The visa applicant is her mother who is a sixty three year old national of Ethiopia. The visa applicant is widowed. She has four adult children, three of whom, including the review applicant, live in Australia. Her son to whom she is close, lives in Ethiopia.

15. The review applicant’s evidence is that she last saw her mother in 2015 when she visited Ethiopia. Her mother wishes to visit Australia to spend time with her daughters and grandchildren all of whom live in Melbourne. She will also come to bless her children and grandchildren in accordance with Ethiopian custom. It is a good time for her to visit because her business, a shop in Ethiopia, is undergoing renovation and she therefore has an opportunity to have a holiday from the business which she manages. She will reside with the review applicant while she is Australia. The review applicant has provided the Tribunal with a copy of a Private Lease Certificate in the visa applicant’s name issued by the Addis Ababa City Administration Works and Urban Development Bureau (Tribunal file, f.15). The parties’ evidence is that the visa applicant earns a good income from her shop and lives comfortably in Ethiopia. They have provided copies of bank records indicating that she has significant savings in excess of (the equivalent of) USD12,000.00 (Tribunal file, f.19).

16. The review applicant’s evidence is that her mother has applied to visit Australia for three months, but will probably stay for a shorter period as she has significant obligations in Ethiopia. As well as her business she is very involved with two separate social enterprises which undertake charitable work in her local community. The review applicant named and described these enterprises. She told the Tribunal that her mother lives in Addis Ababa with four family members who are under her care. One is her niece (her brother’s daughter), one is her sister’s grand-daughter, and two are close relatives on her father’s side of the family.

17. The review applicant’s evidence is that the visa applicant has travelled outside Ethiopia in the past, to South Africa for a holiday and to Saudi Arabia for religious purposes.

18. The Tribunal discussed with the review applicant the delegate’s concern, expressed in the primary decision record, that the applicant had failed to disclose in her visa application that she had previously been refused a Sponsored Family Visitor visa in October 2015, a matter in respect of which the delegate expressed serious concerns. The review applicant explained that when a previous application for the visa applicant to visit Australia was refused in October 2015, she had been advised by her then migration agent that they could re-apply after seventy two days. They chose to do so and the subsequent visa application had been prepared by the review applicant’s former migration agent who presented it to the parties to sign. The non-disclosure was therefore the result of an administrative error made by the agent, and does not represent an intention to provide incorrect information. The review applicant presented to the Tribunal as a credible witness and the Tribunal accepts her evidence in this regard.

19. The review applicant told the Tribunal that since she arrived in Australia some nineteen years ago she and her siblings have promised their mother that they would bring her to Australia to visit. For many years their mother refused to come as she has a full and demanding life in Ethiopia where she is settled and lives happily. However she has agreed to come at the present time because of the opportunity to travel during the temporary closure of her business for renovation.

20. The evidence of Muluka Bushra who is the review applicant’s sister and the visa applicant’s daughter was consistent in its detail with that of the review applicant regarding the visa applicants’ circumstances in Ethiopia and her reasons for wishing to visit Australia. The witness described to the Tribunal how she had persuaded her mother to come with her on a holiday to South Africa and how her mother had enjoyed the holiday as a break from her busy day to day life in Ethiopia. This experience had motivated her daughters to encourage her to visit them in Australia where she would bless the family and spend time with her grandchildren and take the opportunity to relax and refresh her mind. The witness assured the Tribunal that the visa applicant would return to Ethiopia in accordance with the conditions of any visa granted as her life there is very busy. She repeated her sister’s evidence regarding their mother’s previous reluctance to visit Australia for reason of her obligations in Ethiopia, and in regard to the opportunity for her to travel that has arisen as a result of rebuilding of her business. Ms Bushra presented to the Tribunal as a credible witness.

21. The parties have provided detailed evidence that the visa applicant will certainly return to Ethiopia within the visa period. They have provided detailed submissions and consistent oral evidence regarding the purpose, timing and duration of the proposed travel of the visa applicant. They have also provided a supporting documentary material regarding the visa applicant’s business and assets in Ethiopia which is set out above. The Tribunal finds their evidence to be plausible. The proposed duration of the visit is for up to three months, which is consistent with the expressed purpose of the visit.

22. Having considered all of the evidence before it the Tribunal considers the factors indicative that the visa applicant will return to Ethiopia in accordance with her visa conditions outweigh any factors which suggest she may seek to remain in Australia beyond the visa period. Therefore, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visitor visa is granted. Based on the evidence before it considered as a whole the Tribunal is satisfied that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject: c1.600.211(b).

23. The Tribunal has considered each of the factors contained in cl.600.211 and 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

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.

    Mary Cameron
    Member