1713858 (Migration)

[2018] AATA 2266

1713858 (Migration) [2018] AATA 2266 (17 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713858

MEMBER:Ian Berry

DATE:17 April 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 17 April 2018 at 4:44pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Whether the applicant is a genuine temporary entrant – Where applicant intends to apply for a spousal visa at a later time – Strong incentives to remain in Australia – Incentives to remain in Australia outweigh ties to home country

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, Conditions 8101, 8201, 8503, 8513

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 26 June 2017 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant (the second applicant) applied for the visa on 12 June 2017. The delegate refused to grant the visa on the basis that this applicant did not meet cl.600.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied the second applicant intended to stay temporarily in Australia for the purpose for which the visa would be granted. The delegate’s concern was there was not any evidence of her claim to run a shop in Burundi. Also, the second applicant had not travelled to a country comparable with Australia. Lastly, the economic and environmental circumstances of her own country are not conducive for the second applicant to return to her own country in accordance with the visa conditions.

3. The review applicant (the first applicant) appeared in person before the Tribunal on 8 November 2017 and by telephone on the adjourned date of 15 January 2018. In both hearings the first and second applicants gave evidence and presented arguments. The Tribunal hearing was conducted with the assistance of different interpreters in the Kirundi and English languages.

4. The first applicant had a concern in relation to the interpreter at the first hearing. He wrote to the Tribunal on 9 November 2017[1] where he stated a concern of there being a conflict of interest in that he alleged the interpreter knew the first applicant and did not translate in Kirundi but in Kinyamulenge which sound a little similar to Kirundi. He offered suggestions as to the interpreter at the next hearing. For instance, the interpreter should speak Kirundi, preferably be female and be from an Australian State other than [a particular Australian state].  

   [1] T1, folio 101.Letter dated 9 November 2017

5. The first hearing did not proceed to a conclusion as there were difficulties with the telephone connection with the second applicant in Burundi. On some occasions when the second applicant was asked a question there were pauses before her answer. However, where she did not answer the question, she requested the interpreter to repeat the question. The Tribunal was satisfied the second applicant understood the questions to which she gave answers. The Tribunal drew this from the question asked and the second applicant’s response. If she did not understand the question, then there would be a disconnect between the two.

6. In any event, the evidence taken at the first hearing was covered in the second hearing. The first applicant was with the second applicant at the second hearing and both gave their evidence in the country of Burundi.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the second applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the matters set out in cl.600.211(a) to (c) of Schedule 2 to the Regulations.

   Background

2. The first applicant is an Australian citizen who [entered] Australia in 2005. His first wife is deceased having died in 2014. The second applicant is his de facto wife and he says that they have one child together. The second applicant says that they have had three children but two are deceased. The third child is [name removed] who was born on [a particular date].

3. The first applicant is the sole carer for his child with his deceased wife, who in this decision will be called “[Ms A]”. She was born in [a particular year] and is now aged [a particular number of years]. She entered Australia in 2016 after having become an Australian citizen in 2015.

4. The first applicant was granted Australian citizenship in 2007. He is [details of occupations removed]. During 2016 he commenced caring for [Ms A] when she reunited with him in Australia.

5. The first applicant had previously made an application for the second applicant to come to Australia as a visitor. On the 6 April 2017, the Department rejected that application for the reason the second applicant could not establish that she was the first applicant’s de facto wife.

6. [In] May 2017 while on a trip to Africa, the first applicant was a passenger [in a vehicle] travelling to the [airport], intending to return to Australia, when the [vehicle] crashed causing him to sustain injury. He returned to Australia [in] June 2017. It was the nature and extent of his injury which formed the reason for this visitor visa.

7. By his statement of submission dated 27 June 2017,[2] made supporting his application for review, the first applicant submitted the concerns he had for his daughter and his inability to care for her caused by the injury sustained in the [vehicle] crash. He stressed how important it was for his partner, the second applicant, to join him in Australia to help care for him and his daughter [Ms A]. It is noted that the second applicant would have been in advanced pregnancy should the visa have been granted. The second applicant would have had the care of the first applicant, his daughter [Ms A] and the new baby.

   [2] T1 folio 29 - 30

8. The Tribunal is unsatisfied, for the reasons set out in this decision, the second applicant could cope with that responsibility.

9. In the first applicant’s first submission dated 27 June 2017, in paragraph 11,[3] he stated:

   “my partner we plane to apply other visa in future such as Spouse visa from 2018 at the end due to other commitment we have planned for our family. I declared this a genuine short stay we putting in writing, I and my partner we must comply with law such as I belong to Australian society to adhere with law for the security for our country, what we declared is what we follow for best our future and its application we may make. I respect law and must follow it my partner do the same.”

   The extract is as written by the first applicant including the words in bold.

   [3] T1, folio 30

10. The Tribunal has a major concern of the first applicant advising of his intention to apply for a spousal visa so shortly after the second applicant is intending to return to Burundi. The Tribunal is not satisfied that such a statement supports the first applicant and the second applicant intend the second applicant’s stay be temporay.

    Departing Australia without [Ms A]

11. The first applicant has travelled to Africa on many occasions since his first arrival in Australia [in] June 2005.  It is partly explained by the child [Ms A] living in Africa until [February] 2016 when she arrived in Australia in order for the first applicant to care for her on a full-time basis. However he did continue to travel to Africa without her.

12. The times the first applicant had travelled to Africa on several occasions without taking his daughter with him were both before and since his accident [in] May 2017. These dates were put to the first applicant by the Tribunal’s s.359A and s.359(2) letter dated 21 February 2018.[4] He sought an extension and it was given. A summary of his responses, relating to the times and periods he was overseas, are set out:

    [4] T1, folios 130 – 131.

    [March] 2016 to [June] 2016

13. It was necessary for the first applicant to travel to Burundi as the second applicant was sick and hospitalised in [Country 1].  At that same time he had a court hearing in May 2016 which related to [a particular matter]. 

    [December] 23016 to [February] 2017

14. His [son] passed away [in] 2016.  The first applicant travelled to Burundi for the funeral and to emotionally support the second applicant.

    [April] 2017 to [June] 2017

15. He needed to attend a [court] hearing located in [Burundi].  It concerned [civil dispute].  He says the case is still pending.  Also, the first applicant’s daughter [Ms A] suffers from [a particular medical condition] so he needed to obtain ‘nature medication’ for his daughter while he was in Africa.  He says this medication ‘works well’.

    [December] 2017 to an expected return [in] March 2018

16. He says he went to Burundi to get [medical treatment] assistance:

    I could not get assistance for [medical treatment] as recommended by my medical doctors here [Australian City 1] but I would not able to afford for 4 days a week for $480 per week plus transport and other things related to my condition.  In additional of this I was paying [a particular healthcare provider] who sends some nursing to give a shower me 2 days a week for shower and one day for cleaning my house.  In additional of this I have to pay Taxi to hospitals and doctors when friends are unavailable.

17. Some other services were also unavailable such as nature medication from the forest and culture medication service. The first applicant was able to obtain that service for free. This medication was unavailable in Australia to his knowledge. He summarises his predicament as being able to live in Burundi and [Country 1] more cheaply. He was able to attend [medical treatment] for 5 days a week and pay $180 per week including transportation. He compared this to [Australian City 1] where he paid $80 for a return trip (1 day) by Uber/taxi to [a particular healthcare centre].

18. The Tribunal has some reservations with this explanation. On the one hand he says his daughter has psychological and medical issues which would suggest that his presence would be far better served by his being at home. Economically, while he says it is less expensive to have medical treatment and [medical treatment] in Africa, he pays, on his evidence, $2,500 for air fares and insurance to travel to Africa. 

    The Response for leaving [Ms A] in Australia

19. In respect of those same periods, the first applicant detailed the care provided for [Ms A] in response to the same letter of 21 February 2018 under s.359(2) inviting the first applicant to provide the following information:[5]

    ●   In respect of the occasions when you travelled overseas, after the birth of [Ms A], and when [Ms A] was living in Australia:

    ○Who was caring for [Ms A];

    ○        How was she being supported emotionally and financially;

    ○        Where was she being housed;

    ○What was the relationship between you, [Ms A] and the person or persons who were caring for her.

    [5] T1, folio 138 -141 (page 4).

20. He responded stating [Ms A] was cared for by [Ms B] and her husband [Mr C] since [March] 2016 to [June] 2016. They are his best friends and are of the same culture, suitable for emotionally supporting [Ms A]. Before the first applicant left Australia, he provided for her financially by providing money to the carers.

21. In 2016 this family also cared for [Ms A] when she was in hospital on numerous occasions. [Ms A] attends a school in proximity to where the first applicant lived with her but attended the school closest to his friends’ residence when he was overseas.

22. Another couple who living in [a particular location] who operate a [business] at their home also cared for [Ms A], though the first applicant did not detail the care other than suggesting they cared for her ‘for every two weeks’.

The second applicant’s assets

1. It is for the Tribunal to assess the incentive for the second applicant to return to Burundi. She gave evidence as to her assets and commitments. On the one hand she cares for [a number of] orphan children, besides her baby boy, and runs a farm, two shops and, in the last few months, a [third business].

2. She says if she is allowed to come to Australia, the orphan children will be cared for by her employees. She has [a number of] employees in total.

3. One shop is located where she lives. She operates that shop with assistance. The market shop is operated by employees. It is reasonably close. It is at this market where the [the third business] is located.

4. The farm has a cow, cattle and poultry. The produce, such as milk, is consumed at home. She has not started selling her cattle which she is breeding. Her income seems reasonable. She has [a particular amount of] Burundian francs in her savings account. Neither applicant has provided documentary proof of the assets, though it is accepted that proof may be difficult to supply in documentary form. The Tribunal is reasonably satisfied the assets are what the second applicant states they are.

5. The second applicant applied for a visitor visa in the tourist stream rather than a visitor visa in the sponsored family stream. The first applicant explained that the tourist stream was more expeditiously assessed by the Department.

6. The second applicant may not have a genuine intention to return at the end of her visa. It seems inconsistent for the first applicant to require the second applicant’s assistance in caring for [Ms A], caring for the first applicant, her baby who would be only months old. The areas where she is able to assist would be limited as In her evidence, she can drive, though she has not driven in a western country.

7. It is difficult to understand as to how the second applicant would be able to undertake all the duties required of her in looking after her baby and caring for [Ms A] and the first applicant and maintaining a household, in a period of three months.

8. The Tribunal is not satisfied that the second applicant would be able to drive in a westernised country with its complicated road systems and signs in English. For the second applicant to negotiate her way in a foreign country without an ability to speak English, and taking into account the limited assistance from the first applicant. Particularly, when it is alleged, as was given in her evidence that she will be here for only three months. The arrangements are more in line with the second applicant staying beyond her visa period.

9. The Tribunal is not satisfied as to the second applicant intending genuinely to visit Australia and stay in accordance with a visitor visa.  While the second applicant has, in the light of the other evidence before this Tribunal, it has placed less weight on that evidence in relation to whether she intends to be a genuine visitor who will return to her country after three months. The applicants having formed an intention to live in Australia (as stated by the first applicant) postponed to later this year, the Tribunal does not consider the value of her assets to be a sufficient incentive to return to Burundi.

10. The first applicant has stated he has plans for the second applicant to apply for a spousal visa for her to come to Australia.

11. 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. The second applicant has not ever been to Australia.

12. The Tribunal must also consider the intentions of the second applicant 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 wold 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 that three months.

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia.

    ·8513 – must not remain in Australia after the end of permitted stay.

13. The Tribunal is satisfied the second applicant would not be able to work for the three months being the term of the visa. She has limited skills, no driving skills and a duty to care for the first applicant, [Ms A], her baby and maintain a household.

14. The Tribunal is satisfied the second applicant would not undertake study, though it is for three months the length of her visa. The reasons are already stated in the previous paragraph.

15. The Tribunal is not satisfied the second applicant will depart Australia as required under the FA600 visitor visa. An intention to continue with  a spousal relationship in Australia with the first applicant has been expressed in the evidence.

16. For the above reasons, the Tribunal is not satisfied the second applicant genuinely intends to stay temporally in Australia for the purpose for which the visa is granted, and finds the requirements of cl.600.211 are not met.

    Decision

17. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Ian Berry
Member