1901294 (Migration)

[2019] AATA 2463

1901294 (Migration) [2019] AATA 2463 (29 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901294

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:          29 March 2019 at 2:30 am (WA time)

DATE OF WRITTEN RECORD:                17 April 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 17 April 2019 at 12:39pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – previous sponsor – visit family-related purposes – other family members approved – concerns whether applicants intend to comply with conditions – not able to work – applicants settled in their home country – satisfied visit is legitimate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 600.211

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

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD  [2.30 pm]

MEMBER: This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 January 2019 to refuse to grant the two visa applicants Visitor (Class FA) visas under section 65 of the Migration Act. The visa applicants, who are the mother and younger sister of the review applicant, applied for the visas on 26 November 2018, and at the time the visa applications were lodged, Class FA contained only one subclass, Subclass 600 (Visitor), with a number of different streams. In this case, the applicants applied for the visas seeking to satisfy the primary criteria in the sponsored family stream.

I have no issues with the legality or compliance of the sponsorship, and I notice the Department does not appear to have had any problems with that either. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations. Relevantly, they include clause 600.211, which requires the visa applicants to satisfy the Minister that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

The delegate refused to grant the visas, on the basis that the visa applicants did not meet clause 600.211.  Before the hearing, I have received some written submissions from the review applicant, and it is probably convenient for me to read those out.  They are – the review applicant confirms she is an Australian citizen.  She confirmed her passport number, and that she is the sponsor of her mother, [Ms A], and her younger sister, [Ms B].  She says that she is inviting her mother to visit Australia around mid-February 2019 and to stay for three months, after which she will return back to Nigeria, for two reasons:

I turn [age] years old in December, and, along with my husband, who will also be [age] in [month], will be celebrating this milestone in [this] year, as well as our 21 years of marriage.  I want her to be part of this joyous occasion in our lives.  Since my family relocated to Australia in 2012, my mother has not had the opportunity of getting to see her grandchildren.  My mother is not desirous of settling in Australia.  All her networks and support are based in Nigeria, and it has taken me a lot of persuasion to get her to consent to coming on this trip to visit her grandchildren.  She is currently living in Benin City, Nigeria, where she is saddled with the responsibility of taking care of her great-grandchildren.  Unfortunately, I do not know of any further evidence that can be submitted of my mother’s significant ties that would encourage her to return to Nigeria within the validity of her visa. 

The visit of my junior sister, [Ms B], is also to be part of our celebration, but, more importantly, to escort my mother safely to Australia and back to Nigeria.  My mother is not literate, and has no international travel experience to assist her regarding airport terminals and customs clearances that she may need to get to Australia.  I would like to bring attention that my family has previously sponsored two individuals to Australia, and in both cases these individuals did not violate the terms of their visas, and they returned back to Nigeria prior to the visa expiry.

The current application for my mother and sister will not be a departure from this, as my family are law-abiding citizens that will not allow anything to tarnish our reputation, which we have built over the years.  If needs be, given the concerns of the Department of Home Affairs, I am willing to put down an agreed amount of money as a bond, to assure the Department of my mother and sister’s departure from Australia before the expiration of visa when granted. 

Now, the tribunal has noted that there was a visa granted in relation to the review applicant’s mother-in-law for the same purposes, being the trip for the [birthday] and anniversary of her daughter in law.  The tribunal notes that on 13 February 2019, there was a Visitor (Subclass 600) visa issued to [Ms C], allowing her to enter Australia before 13 May 2019, and allowing her to stay for four months from the date of arrival.  It was a single entry visa.  That is also in the sponsored family stream.  

Whilst the fact that the Department has approved a visa for someone else attending the same function does not automatically support the review applicant’s arguments, it is something I need to take into consideration in this particular matter, it is something that I feel I should take into consideration, and I do give that some weight.  There is also another person that I am told has been granted a visa to attend the same function, also from Nigeria.  That person is the sister-in-law of the review applicant.  

The review applicant appeared before the tribunal at 1.30 pm on Friday, 29 March 2019, to give evidence and present arguments.  The tribunal had anticipated receiving phone evidence from the two visa applicants.  However, there was an issue with the availability of an interpreter in the appropriate African language.  So the tribunal was faced with the decision as to whether to proceed, or whether to adjourn the hearing, for the purpose of trying to obtain an interpreter.  The Tribunal understands there were difficulties sourcing an appropriate interpreter throughout Australia at the time.

The tribunal raised this with the review applicant.  She told the tribunal her mother does not speak any English, and her sister, [Ms B], only speaks what is called Pidgin English.  She talks to her sister in her own language.  Based upon that, the tribunal was not confident that there would be any value in contacting either the mother or the sister, because of the language difficulties likely to be encountered.  The tribunal decided to proceed on the basis of hearing from the review applicant only.

The issue in this case is whether clause 600.211 is met, which requires the tribunal to be satisfied that the visa applicants genuinely intend 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 – well, in this case, neither [Ms B] or her mother have been to Australia before, as I understand it.  There are no last substantive visas, and there are no subsequent bridging visas.  Therefore, I acknowledge there is no evidence of previous compliance, or non compliance.  

So the issue really is whether the applicants intend to comply with the conditions, and whether they would leave.  They seek the visas for the purposes of, primarily, attending the function that is to occur [in] April, being the joint celebration of the review applicant with her husband.  There is also some amount of tourist-related activities that may be planned.  These are purposes for which a visa in the sponsored family stream may be granted. 

The tribunal must consider whether the visa applicants intend to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows. 
Must not work in Australia.  The mother is now 80.  As I understand it, she has full-time duties caring for grand children.  She has not worked, in the sense of paid work, in her entire life, but she has been a mother and a carer and a home keeper all of her life.  Her husband was involved in farming.  I am satisfied, in her case, there is no likelihood at all that she would work in Australia. 

[Ms B] has some experience in hairdressing, and hairdressing is a fairly fluid industry in Australia, and it would be expected that the possibilities of employment could open up for her.  However, when I take into account the mother’s situation and her reasons for travelling, and the intended purpose for [Ms B] coming, I am also satisfied that she would not work in Australia.  I am satisfied that both would not engage in study or training in Australia for more than three months there being no evidence or information to indicate this. 

Based upon the evidence from the review applicant about the security situation in the area that both live, they would arguably not be entitled to a a protection visa whilst remaining in Australia.  I bear in mind the country information that I put to the review applicant, which was to the effect that southern Nigeria is volatile, due to confrontations between armed criminal groups and security forces, in relation to the theft of and control over oil resources in the Niger Delta region. 

There are inter-ethnic land disputes in the central region on Nigeria, known as the Middle Belt in the central north.  There have been conflicts between the largely Muslim Fulani nomadic pastoralists and Christian farmers.  And I listened carefully to what she said in relation to that, and the possible dangers and effects on her family where they live, which is the Edo State.  I am satisfied, on her evidence, that those dangers are not presenting themselves to her family presently. 

So the real issue is whether [Ms B] and her mum would remain in Australia after the end of the permitted stay.  So I need to just review what the review applicant told me.  She is a [age] year-old woman, born in Nigeria.  She comes from the Edo State area.  She left school at the age of about 17 or 18.  She has obtained a [Bachelor degree] here in Australia.  She is a [health professional].  She works in [a certain] health area at the moment.  She came to Australia in 2012.  Her husband was posted here whilst working with [Company 1].  However, her husband is without work, and has been for quite a while now.  They did not ever apply for protection in Australia.  Her mother is now 80.  Her health is generally good, although she has blood pressure problems. 

Her mother lives with her senior sister, [Ms D].  Her sister does not have health issues – [Ms B], that is who I am referring to.  The family has always lived in the Edo state.  There are no security concerns that she is aware of in relation to the home area.  It is more the northern areas that are of concern.  She told me that [Ms B] has never married.  She has three children.  They are aged 18, 16, and 13, and all live at home with their mother, [Ms B].  Should [Ms B] come to Australia with her mother, her children in Nigeria will stay with relatives, and they will be monitored.  They will need to be going to school.  But there is also their father, who lives somewhere in the vicinity. 

Her mother survives financially with assistance from her family.  The review applicant told me about an allowance that they send on a monthly basis to their mother, and her mother has no financial problems.  I asked what her expenses are, and I was told mostly blood pressure medication.  Her sister, [Ms B], is renting, but she was not sure how much rent she pays.  Her sister is a hairdresser, and she does work from home, and gets paid.  I understood that to mean cash in hand.  Her sister is not in a relationship.  All the children are in school. 

The air flights for mum and sister have not been booked yet.  Her and her husband will need to pay the air flights.  They have been saving for this for quite a while.  She told me that they have access to an amount of about [sum deleted], held in account or accounts here in Australia.  Not all of this will be required for the celebration, however.  She told me about her own children.  Her son is 20 and her daughter is 19, and both are still living at home.  The son is studying [Course 1], and the daughter is studying [Course 2]. 

Her husband and her pay an amount of about [sum deleted] a month for a mortgage on a house.  There is still a considerable amount outstanding on that mortgage, being about [sum deleted].  She told me that it may be they bought at the wrong time, in relation to house prices.  She told me something about [Company 1] having paid her an amount which I understood to be some form of compensation for living in a foreign country when her husband was employed by that company. 

She told me that her mother and sister only want to stay for three months maximum.  They would stay with her and her husband.  They will be cared for and fed by the family.  She told me that her mother has not ever travelled overseas, and has not travelled on an aeroplane before.  So I can understand why it would be that she would want her younger sister to accompany her mother.  The sister herself has not ever travelled outside of Nigeria.  As I said, I did put country information to the review applicant, at paragraph 2.36 of the most recent DFAT country information report on Nigeria, dated 9 March 2018. 

She acknowledged that there were problems in her general area of Nigeria.  She said that every country has its own issues.  There is oil in the south of the country.  Sometimes there are conflicts, but this has not affected her family.  She told me about her mother-in-law and sister-in-law, and the mother-in-law has been to Australia before, and had received a visa and had been sponsored.  The visas for them, as I said earlier, have been approved, for the very same reasons, being the review applicant’s function.

I asked her whether she had anything further to say, and she said she realises the Department has a job to do.  Then she said, "Well, why would an 80-year-old woman want to stay in Australia, at her stage of life?"  She said that her mother would not overstay.  She said that she herself works full-time, that she does not have any young children anymore, so that her mother would have nothing to do with her life if she overstayed. Her mother has her own networks in Nigeria, which I understood to mean family and friends.  Her mother wants to put a face, or an image to where she lives with her husband in Australia.  She said that they are law-abiding people, and that they cannot support the mother and the sister, I take it to be, if they were to overstay here. 

She told me there were [a large number of] people coming to the function.  She thanked the tribunal for its hearing.  And she also made the point that if her mother and sister do not come, she will be here alone for the function, meaning without her direct family, and she will make sure that they will go back.

I am satisfied that criterion PIC 4011 is not a relevant consideration in this particular matter. 

So when I look at all of that information individually and collectively, I have a picture that her mother, at 80 years of age, and the sister, at [age] years of age, are settled in their home country.  Particularly the mother:  I am satisfied that she would have, at that stage of her life, significant networks of friends and family, and the prospect of resettling in another country nearly across the other side of the world would not, to say the least, be particularly easy. 

I am satisfied that [Ms B] has applied for the purpose primarily of assisting her mother to get on the plane to travel over here, attend the function, and get her home again.  I am satisfied that it is a legitimate visit, and that there is no intention on either to overstay their visa, should one be granted. 

So, for the above reason, as I have mentioned – and I reserve the right to develop those reasons if required – the tribunal is satisfied that the two visa applicants do genuinely intend to stay only temporarily in Australia, for the purpose for which the visa is granted, this case being family-related purposes and also some limited tourism.  And I do find that the requirements of clause 600.211 are met. 

The decision is that the tribunal remits the two applications for Visitor (Class FA) visas for reconsideration, with a direction that the visa applicants do meet the criteria for Subclass 600 Visitor (Class FA) visa, which is clause 600.211 of Schedule 2 to the Regulations, and that is the decision.

All right, so do you understand that? 

[Review Applicant]:  Yes, thank you.

END OF ORAL DECISION  [2.49 pm]