1604737 (Migration)

[2016] AATA 4620

1604737 (Migration) [2016] AATA 4620 (31 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ishaq Ojibara

VISA APPLICANT:  Mrs Mariam Olaide Bolajoko

CASE NUMBER:  1604737

DIBP REFERENCE(S):  BCC2015/3619064

MEMBER:Margie Bourke

DATE:31 October 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 31 October 2016 at 4:07pm

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 29 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 1 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 for a range of reasons the delegate was not satisfied the visa applicant genuinely intended to visit Australia temporarily. The reasons noted by the delegate in the decision record dated 29 January 2016 included that the visa applicant had not provided evidence of ownership of any significant assets, had failed to provide an answer to the question of whether she had previously travelled to Australia or previously applied for a visa, and the highly unpredictable security situation in Nigeria which may not directly affect the visa applicant.

5. The review applicant appeared before the tribunal on 31 October 2016 to give evidence and present arguments. The tribunal also received oral evidence from the visa applicant via telephone, and from the review applicant’s spouse.

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 brother and his family.  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 she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)). There is no evidence before the tribunal that the visa applicant has held an Australian substantive visa or any other type of 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 is satisfied that the visa applicant is married and has two children. The tribunal is satisfied that the visa applicant has other family who reside in Nigeria. The tribunal has considered the submissions of the review applicant and does not give as much weight to the lack of ownership of fixed assets as it does to the evidence of the visa applicant’s spouse and children in relation to an incentive to return to the visa applicant’s home country. The tribunal puts weight on the visa applicant’s commitment to her family and her employment when considering whether she genuinely intends to only temporarily stay in Australia. The tribunal is satisfied that the visa applicant has been employed since 2009 and considers her employment to be a good job and one she values. Based on the oral evidence at the hearing the tribunal is satisfied that the visa applicant does not intend to work, study or train in Australia. The tribunal is satisfied the applicant is not entitled, based on the evidence before it, to a substantive visa (other than a protection visa) whilst in Australia.

12. The tribunal has considered the issue of whether the visa applicant would remain in Australia after the end of the date of the visa. Firstly the tribunal has considered the Department’s decision record dated 29 January 2016 in which it notes the delegate reports the highly unpredictable security situation in Nigeria. The tribunal notes that the delegate accepts that the visa applicant may not be directly affected by the adverse situation and unrest occurring in parts of Nigeria. The Tribunal accepts that the visa applicant and her family live in the suburb of Maitama in the capital city of Abuja. The tribunal has considered the oral evidence of the visa applicant, the review applicant and his spouse. The tribunal is satisfied that the review applicant and his family including his children had visited the visa applicant and her family in Abuja. The tribunal is satisfied that the security situation in the visa applicant’s home town is one where the family feel safe and secure. The tribunal is satisfied that the security situation for the visa applicant and her family, is not one that would encourage her not to return to Nigeria.

13. The tribunal has considered the oral evidence of the visa applicant and the review applicant in relation to the application forms and the fact the visa applicant did not complete the form in relation to the previous application. The tribunal accepts that the visa applicant consulted the review applicant about the forms, and that they were not filled in on the one occasion but over a period of time. The tribunal accepts that the visa applicant would leave parts blank and wait to talk to her brother about the forms. The tribunal accepts that the fact the visa applicant did not answer the question about whether she had previously travelled to Australia or applied to travel was an oversight and not an intention to mislead.

14. The tribunal has also considered the oral evidence of the review applicant and his spouse that it is important to them that their children maintain constant connection with their extended family. The tribunal accepts that the review applicant’s parents visited them in 2010, that the review applicant’s spouse’s mother visited them in 2012, and that the review applicant’s brother and father visited them in 2014. The tribunal gives this weight as evidence that the review applicant wishes to maintain a continuing connection with the extended family in Nigeria. The tribunal gives this weight as evidence that members of the family comply with visitor visas that are granted to them. The tribunal also gives this weight when considering the visa applicant’s evidence that she understands that any non-compliance would affect the ability of family members in the future to travel to visit her brother and his family in Australia.

15. For all these reasons the tribunal is satisfied that the visa applicant genuinely intends to visit her brother and his family in Australia and comply with the conditions of her visitor’s visa.

16. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The review applicant provided the tribunal with submissions and also clear copies of relevant documents including the visa applicant’s birth certificate which records both her parents’ names and the review applicant’s birth certificate which again records both parents’ names. The tribunal notes that on the birth certificates provided, the applicants’ mother was recorded or alternately as “Riha” on the visa applicant’s certificate and as “Rihanatu” on the review applicant’s certificate. The tribunal is satisfied that the review applicant and sponsor is the brother of the visa applicant.

17. 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

18. 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.

    Margie Bourke
    Member