1828874 (Migration)

[2021] AATA 519

1828874 (Migration) [2021] AATA 519 (8 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828874

MEMBER:Frances Simmons

DATE:8 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 8 January 2020 at 5:30pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – approved leave from employer – property in Cameroon – establishing a new business – security situation in Cameroon – family ties in Australia – opportunity to work in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

CASES

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155    

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 27 July 2018 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 July 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different 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 he genuinely intends to visit Australia temporarily.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. In the visa application, the visa applicant said she would like to come to Australia to visit her brother, sister-in-law and nephew. She will be given leave by her employer, [Employer 1]. She provided various documents with the visa application including: her birth certificate and the birth certificate of her brother; two letters outlining the reasons that she wants to visit Australia; a copy of the biodata page of the visa applicant’s passport; a copy of the biodata page of the passport of the review applicant; a copy of the company registration  for [Business 1], which is a company owned and operated by the review applicant and his wife, and a letter from the visa applicant stating she, along with her brother, is a co-founder of a start-up [company] called [Business 2] , that she is the [Manager 1] on a part-time basis. She writes that she looks forward to coming back to Cameroon and taking the company to the next level of growth.

7. The delegate was not satisfied that the applicant met cl.600.211 of the Regulations. The delegate stated she was ‘conscious of the applicant’s family links to Australia and the circumstances regarding their past immigration history’. The delegate also noted that the applicant has no family ties to Cameroon and had not previously travelled outside of Cameroon. While the applicant’s claims to have been employed as a manager in a [service] company for three years were not doubted, the delegate had concerns regarding the applicant’s capacity to take leave from her employment for three months to travel to Australia. The delegate accepted the applicant wanted to visit her family in Australia but was not satisfied that she would comply with the conditions of a visitor visa or that she would depart Australia at the end of her permitted stay.

   Review application

8. On 14 October 2020, the Tribunal wrote to the review applicant and invited him to a hearing and requested that he provide further information in support of the application before the hearing. On 30 October 2020, the Tribunal refused a request from the review applicant to postpone the hearing scheduled for 3 November 2020. The postponement was sought on the grounds that the review applicant required further time to provide the information requested by the Tribunal.  The Tribunal declined to grant the adjournment noting that the review applicant could request time to provide further information after the hearing if required.

9. The review applicant appeared before the Tribunal on 3 November 2020 to give evidence and present arguments. This hearing was adjourned and resumed on 10 November 2020 to enable the Tribunal to take evidence from the visa applicant (she was not available on 3 November 2020) and to enable the applicant to provide further information in support of his case. The Tribunal took evidence from the visa applicant with the assistance of an interpreter in French and English languages.

10. The hearing on 3 and 10 November 2020 was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

11. Where relevant the evidence of the review applicant and the visa applicant is considered further below. The Tribunal has also had regard to the evidence of the review applicant’s wife, which was  that her husband was of a good character, that there was no intention to deceive anyone about the intentions of the visa applicant, and that they were prepared to provide a security bond.

12. After the hearing, the Tribunal received the following documents:

    a.Photographs of visa applicant and other staff members at [Business 2];

    b.Work Leave Testimonial for visa applicant from [an executive] of [Employer 1] dated 11 November 2020;

    c.Certificate of Land Ownership issued to the visa applicant;

    d.Salary Statement for visa applicant for [Employer 1] for the following periods: 5 June 2020; 5 July 2020; 5 August 2020; 5 September 2020; 5 October 2020; and 5 November 2020.

    e.Company Registration documents and contract for ‘[Business 2]’;

    f.[Bank] Proof of Balance Report for [name] as at 16 November 2020.

    g.Bank account certification letter for PVA from [a named] Credit Union [dated] 16 November 2020; and

    h.Bank Statement from [that Credit Union] for period 1/5/2020 to 31/10/2020.

13. The Tribunal notes that the [Business 2] website was accessible at the time of writing this decision.  

    Issue for review

14. 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.

15. 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.

16. 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)). The visa applicant has not travelled to Australia before. Therefore, there is no relevant record of compliance or non-compliance to take into account.

17. 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.

18. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the review applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the review applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by a review applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.

19. Condition 8503 refers to entitlement and is not a condition that involves compliance.

20. There is no evidence before the Tribunal that indicates the visa applicant intends to engage in study or training in Australia for more than 3 months. The Tribunal accepts that she intends to comply with condition 8201.

21. The visa applicant’s intention to comply with condition 8531 and condition 8101 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

22. The Tribunal accepts that the visa applicant is a citizen of Cameroon born on [date]. Based on the consistent evidence of the parties, the Tribunal accepts that she was born in Doula and resides in Doula in a property which she owns. The Tribunal accepts that she is unmarried, her parents are deceased, and that she has [specified relatives] in Cameroon.

23. The review applicant is an Australian citizen, and the brother of the visa applicant. The review applicant gave evidence that he obtained residency in Australia after he applied for a protection visa and was recognised as a refugee. This is consistent with the information before the Tribunal, which is that he was found to be owed protection obligations by the Refugee Review Tribunal in 2004. He obtained citizenship and since 2016 he has returned to Cameroon on multiple occasions, most recently in 2020.

24. The review applicant operates a business called [Business 1] and he told the Tribunal as part of this business he has [a named online presence] with [a large following]. In evidence the review applicant clarified that [Business 1] is a separate business to [Business 2]. Both businesses involve [products 1] but his sister is not involved [Business 1], although the content developed for [Business 2] could be used for [their online presence]. He clarified that [Business 2] is registered in Cameroon, not in Australia.

25. The applicants told the Tribunal that the visa applicant wants to visit her brother, his wife, their children and his mother-in-law in Australia for three months. Asked what she would do while in Australia, the visa applicant said she would stay at her brother’s; she was not going to do anything. She would then return to Cameroon to grow [Business 2].

26. The Tribunal has considered whether the visa applicant genuinely intended to visit Australia temporarily and whether her circumstances are different from the circumstances that led her brother to seek protection in Australia. The review applicant told the Tribunal that he last saw his sister in January 2020 in Cameroon when they were working on the development of a [product 1] project for [Business 2]. His sister is currently employed at a [service] company, she would be able to take paid leave while she is in Australia, and she would be happy to come to Australia for one month rather than three months. He would like his sister to spend time with his children. His first-born child has been diagnosed [with a condition] and his second born child may also have [that condition].  It is important to him that his sister be able to visit his children and form a connection with them.  His wife doesn’t have any siblings and his sister is his only sibling. His wife was looking after her elderly mother, so it was easier for the visa applicant to travel to Australia.

27. With respect to the question of whether his sister may seek to change her status in Australia as the review applicant did after he travelled to Australia, the review applicant gave evidence that he had been involved in political activity whereas his sister was not. He said he was now a family man who worked and looked after his kids. He did not have issues when he travelled back to Cameroon since 2016 as he is no longer involved in political activity and, in his opinion, the country is more stable than it used to be. He has a successful business in Australia ([Business 1]) and [an online presence] with [a large following]. He told the Tribunal that he and his sister were trying to set up a business in Cameroon in [products 1].

28. The review applicant was asked what would motivate his sister to return to Cameroon at the end of her permitted stay. He told the Tribunal he said they were starting a branch of the company in Cameroon (the Tribunal understood this to be reference to [Business 2]). He also told the Tribunal that his sister had a long-term boyfriend and her childhood friends were from Cameroon. However, when asked for the name of this boyfriend he said he didn’t know yet as he was waiting to be properly introduced.  He explained it was not unusual not be introduced until they were certain they would marry.

29. The review applicant told the Tribunal that if the visa applicant was granted three months leave to visit Australia, she would not quit her job and would take paid leave for three months. The tribunal observed it seemed generous to have twelve weeks of paid leave and the review applicant said she had worked there for a long time. The visa applicant also gave evidence she has worked at a [service] Company [since] 2015, earns 275 000 francs per month and is entitled to leave for three months. Her employer is based in Yaounde with a branch in Doula. Asked what her work involves, she said [deleted]. After the hearing, the Tribunal received bank records for the visa applicant showing evidence of salary payments from her employer as well as a ‘work leave testimonial’ on [Employer 1] letterhead stating she can request 63 days work leave at any time.  She told the Tribunal that she has an assistant who will do her job while she is on leave.

30. The Tribunal has considered the applicants’ evidence that the visa applicant would be motivated to return to Cameroon because she would want to expand [Business 2]. However, the Tribunal found the evidence about the operations of [Business 2] vague and sometimes confusing. While the Tribunal was told [Business 2] generates income, no evidence of income generated by [Business 2] has been provided and it is not clear how the visa applicant balances her part-time work as a Manager for [Business 2], where she is apparently she is responsible for supervising twelve people, with her full-time employment at [Employer 1]. On the evidence before it, the Tribunal is not satisfied that [Business 2] is well-establish in Cameroon or a source of regular income for the visa applicant.

31. The evidence before the Tribunal indicates that the visa applicant was not aware of certain operational aspects of [Business 2]. For instance, asked if [Business 2] had a website, the visa applicant said yes. However, she was then unable to explain why the website address that was provided to the Department could not be accessed by the Tribunal. The review applicant then gave evidence that the website could not be accessed as it was currently under construction.  Asked why his sister did not know the website was under construction, given she was the [Manager 1], he said he was the one who looked after the website. After initially saying the website had been down for a couple of weeks, he then clarified it had been down for three half months and it would be active again in another three months. The Tribunal finds it difficult to accept that, as [Manager 1] at [Business 2], the visa applicant would have been unaware that the [Business 2] website could not be accessed.

32. For the purpose of this decision, the Tribunal accepts that the visa applicant is employed full-time as a [service] manager at [Employer 1]. While the Tribunal has some concerns about the evidence about her part-time work for [Business 2], the Tribunal accepts that, together with her brother, she has working on developing content for this company.  However, the Tribunal was concerned that: (a) the applicants also gave evidence that the review applicant could manage [Business 2] from Australia while the visa applicant was in Australia for three months, and (b) the visa applicant appeared to have limited knowledge of aspects of the company’s operations (for example, the review applicant appears to manage the online operations from Australia and the visa applicant did not know the status of the company website). In this context, the Tribunal is not satisfied that [Business 2] is well-established in Cameroon and is concerned that the visa applicant may be tempted to work in Australia in breach of her visa conditions.

33. The Tribunal has considered whether the security situation in Cameroon will discourage the visa applicant from returning to Cameroon at the end of her permitted stay. Cameroon has a multiparty system of government, but the Cameroon People's Democratic Movement (CPDM) has remained in power since its creation in 1985. Prior to 1985 the CPDM was known Cameroonian National Union. The President of the CPDM, Paul Biya, has been president of Cameroon since 1982. Cameroon has been marred by protests and violence since 2016, when English-speaking teachers and lawyers took to the street to denounce the overbearing influence of French in the bilingual country. The central government in Yaoundé responded with a military crackdown and separatists took weapons, claiming that they were defending English-speaking civilians. In the North-west and the South-west, the clashes opposing separatists and the army, which has been ongoing for three years, has already caused 3,000 deaths and forced over half a million people to flee their homes.[1]

    [1]

34. The Tribunal accepts that the visa applicant is not involved in political activism.  As noted above, the review applicant was found to be a person who was owed protection obligations by Australia in 2004 based on his claims that he would face political persecution. While President Paul Biya retains his grip on power and Human Rights Reports freedom of expression, association and assembly continue to be curtailed[2], the review applicant  has returned to Cameroon on multiple occasions since 2016 and the Tribunal accepts that his travel in and out of Cameroon indicates that he does not currently have a political profile of interest to anyone in Cameroon and that his sister is not at risk of harm because of her association with him. However, while the Tribunal accepts that neither the applicant is currently of adverse interest to the authorities in Cameroon and notes that the visa applicant does not live in an area directly affected by clashes between separatists and the authorities, the Tribunal considers that security situation in Cameroon is more volatile than Australia and this, together with the restrictions on freedom of expression and association, may act as an incentive for the visa applicant to remain in Australia beyond her permitted stay.

    [2]

1. The Tribunal was also concerned that the applicants’ evidence about the review applicant’s immigration history was vague and, in the Tribunal’s opinion, evasive, and this causes the Tribunal to question whether they have been frank and forthcoming and the visa applicant’s intentions in visiting Australia. The Tribunal asked the visa applicant (twice) if she knew how her brother came to reside in Australia permanently. She initially said no and then that she did not know. She also said that this was a question for her brother. When the Tribunal put to her that it understood she was close to her brother and asked again if she knew how her brother came to reside in Australia permanently, she said that she did not know. She confirmed her brother had been back to Cameroon on multiple occasions and that they lived together before he migrated to Australia. As discussed with the review applicant, the Tribunal has difficulty accepting that the visa applicant would be unaware of how he obtained residency in Australia. The Tribunal has considered his evidence that, while his sister does not know what a protection visa, she knew he was exile and that it was now safer for him to go back as a lot had changed and he is no longer involved in politics. The Tribunal found this explanation unpersuasive given his sister is an educated professional, the review applicant has visited her Cameroon on multiple occasions, and lived with her before he left Cameroon.

2. The Tribunal notes that the weight of the visa applicant’s family ties are in Australia, not Cameroon. The review applicant claimed she would be motivated to return to Cameroon by the presence of her boyfriend. However, when questioned further, the review applicant did not know the name of her boyfriend. While the visa applicant may have a boyfriend, she currently lives alone, and it was not suggested she had any plans to marry her boyfriend. The Tribunal therefore gives the presence of this boyfriend limited weight as inducement for the visa applicant to return to Cameroon. The visa applicant does not have a history of international travel or any dependent family members in Cameroon. Her parents died ‘several years ago’ and the only relatives she has identified as having in Cameroon are [specified relatives]. Her closest relative– the review applicant – resides in Australia.

3. While the visa applicant has expressed a desire to return to Cameroon to develop a [product 1] project and work on expanding [Business 2], the evidence does not indicate that [Business 2] is a well-established company in Cameroon and the visa applicant’s evidence was that she is currently employed full-time at a [service] company.  The Tribunal notes that the review applicant has an established business in Australia and also appears to be responsible for managing the [Business 2] website.  In this context, the Tribunal is concerned that the visa applicant may be tempted to work in Australia in breach of her visa conditions. The Tribunal’s concerns about whether the visa applicant intended to comply with the visa conditions were also reinforced by her evidence that she did not know what conditions would apply to the visa and that she did not complete the visa application herself but relied upon her brother to complete the application

4. The Tribunal has weighed up the incentives for the visa applicant to return to Cameroon at the end of her permitted stay against the incentives for her to remain in Australia or to work in breach of condition 8101.  

5. The Tribunal has sympathy for the review applicant’s desire to have his sister spend time with his children in Australia. However, the Tribunal was troubled by the visa applicant’s evidence that she did not know what conditions would apply to the visitor visa as well as her evidence that she did not know how the review applicant obtained permanent residency in Australia. The Tribunal finds it difficult to accept that the parties to the review would not have discussed the issue of how the review applicant obtained residency in Australia, particularly given the review applicant lived with his sister before he travelled to Australia, has returned to Cameroon to visit her multiple times since 2016, and was discussed with the Tribunal at the hearing on 3 November 2020. These issues cause the Tribunal to be concerned that the applicants have not been frank and forthcoming about the visa applicant’s intentions in travelling to Australia.

6. As noted above, the visa applicant does not have any dependent family members in Cameroon and her parents are both deceased. While the review applicant pointed to the presence of her boyfriend as an incentive for his sister to return to Cameroon, given the review applicant recently visited his sister in Cameroon and did not meet her boyfriend or know his name, the Tribunal gives this evidence little weight. While the Tribunal is prepared to accept the visa applicant has ongoing employment in Cameroon, the Tribunal is not satisfied that [Business 2] is sufficiently established to act as an incentive for the visa applicant to return to Cameroon at the end of her permitted stay. The Tribunal was further concerned that, having regard to the fact that the review applicant runs a business that involves [product 1] in Australia, and the fledging business in Cameroon appears to be capable of being managed from Australia, that the visa applicant may be tempted to work in Australia in breach of condition 8101 or to remain in Australia after the end of her permitted stay in breach of condition 8531.

7. The Tribunal has considered the review applicant’s offer to pay a security bond. It is the Tribunal’s understanding that it is a matter of departmental policy that security bonds are refundable if a visa applicant is granted a protection visa. Having considered the individual circumstances of the visa applicant and the country information about the situation in Cameroon, the Tribunal is not satisfied its concerns can be overcome by the payment of a security.

8. The Tribunal understands that this decision will be disappointing to the applicants. However, having regard to all the evidence, the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted.

   Conclusion

9. For the above reasons the Tribunal is not 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 not met.

   DECISION

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

    F. Simmons
    Member