1931418 (Migration)

[2020] AATA 2187

1931418 (Migration) [2020] AATA 2187 (5 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1931418

MEMBER:Melissa McAdam

DATE:5 March 2020

PLACE OF DECISION:  Sydney

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;

·cl.600.212 of Schedule 2 to the Regulations; and

·cl.600.221 of Schedule 2 to the Regulations.

Statement made on 05 March 2020 at 12:04pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – visa applicant supporting daughter with newborn child – managing the visa applicant’s family and business – remaining children and community involvement in Sierra Leone – stable income from business – previous compliant visits of wider family – no documentary evidence of the relationship – decision under review remitted     

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.212, 600.221, 600.611; Schedule 8, Conditions 8101, 8201           

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 24 September 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

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

3. The visa applicant applied for the visa on 13 August 2019. 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 Tourist stream.

4. 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.

5. The visa applicant provided the following information in her visa application:

   a.She is [an age] year old female from [a location in] Freetown, in Sierra Leone.

   b.She is in a de facto relationship.

   c.She has [children and step-children of specified ages]. 

   d.Her other daughter, the review applicant, lives in Australia and is an Australian citizen.

   e.She wants to visit Australia for up to six months to visit her daughter who had just had a baby and needed some assistance.

   f.She has been self-employed as a business owner since October 2016.

   g.Her daughter will support her during her visit to Australia.

   h.In August 2013 she was refused a [permanent visa] visa because she did not satisfy the visa criteria.

   i.She enclosed copies of the following documents:

   i.Receipts for payments made by her for store rental.

   ii.The review applicant’s [child’s] Birth Certificate, born on [date] at [a named] Hospital.

   iii.The review applicant’s [Driver's licence].

   iv.The visa applicant’s Sierra Leone Birth Certificate.

   v.The review applicant’s Bank account statement, showing salary payments from [her employer].

   vi.The review applicant’s Savings account statement.

   vii.The visa applicant’s Bank account statement.

   viii.A Sierra Leone Police Clearance Certificate for the visa applicant.

   ix.A letter from [Mr and Mrs A, and their occupations], dated 9 July 2018, stating that they are relatives of the visa applicant and will provide accommodation and care for her [children] while she is in Australia for 3-6 months to help her daughter.  [Mrs A] is the visa applicant’s sister. The letter details arrangements for their accommodation.  They will also look after the visa applicant’s business at her shop while she is away. They cannot care for the children in the long term because they have their own family and work.

   x.A letter from the visa applicant, dated 5 August 2019, stating that her daughter suffered a lot after the birth of her first child and she is worried it will happen again.  Her [biological] children will be in the care of her sister and sister’s husband while she visits Australia.  They will also oversee her business while she is away, with her assistant who currently runs the shop with the visa applicant. The visa applicant would never leave her children permanently by staying in Australia. Since her daughter visited in 2016/17 for help with her then new born baby the visa applicant has lived in Freetown.  She lives with her children and operates a retail business, which is financially supported by her children in Australia. The situation in Sierra Leone has changed greatly since the review applicant left as it is more peaceful. There is less violence in Freetown.  She does not fear returning to Sierra Leone.

   xi.A letter from the review applicant, dated 6 August 2019, stating that she and her husband want the visa applicant to visit Australia to help them with their two young children. She was working full-time as [an Occupation 1] prior to the birth of her second child in [2019]. Her husband works full-time as [an Occupation 2] and does casual work. They need the visa applicant’s help so the review applicant can return to work. The review applicant previously suffered post-natal depression and anxiety. She had a son who died in [Country 1]. The birth of her [child] caused flashbacks and difficult memories. She went to Freetown then with her husband for her mother’s support. This enabled her to cope during the difficult time. They are confident the visa applicant will comply with her visa conditions and return to Sierra Leone before the visa expires. She would not jeopardise the possibility of returning to see her child and grandchildren in Australia. She has children for whom she is responsible and a business in Sierra Leone. She has very close ties to Sierra Leone. The review applicant and her husband will meet all her needs while she is in Australia.

   xii.A letter from [Sheikh A], dated 14 July 2019, stating that he has known the visa applicant for three years since she moved to their community. They pray together and the visa applicant is a very good woman who helps the community during its activities. She organises food and beverages with other women during functions and helps with children’s activities. She is highly respected and runs the adolescent group in mother crafting skills.

   xiii.An affidavit dated 16 April 2019 by the visa applicant stating that the whereabouts of her children’s father is unknown. Her children were born in [Country 1] and have no birth certificates. Her children are currently residing in [Country 1].

   xiv.Income Statements for the review applicant’s husband from [his employer].

   xv.The review applicant’s Marriage Certificate.

   xvi.A letter from [Psychologist A], dated 2 July 2019, stating that the review applicant has attended his medical centre on three occasions seeking assistance with family related stressors causing her anxiety and stress. She is at elevated risk of developing post-natal depression again. She would strongly benefit from having her mother’s support.

   xvii.The review applicant’s Payment Summary for year ending 30 June 2019.

   xviii.The review applicant’s Australian passport.

   xix.The review applicant’s [child’s] Australian passport.

   xx.The visa applicant’s Sierra Leone passport.

   xxi.A record of birth for the review applicant’s child born [in] 2019.

   xxii.A letter from [a named health practitioner], stating that the review applicant is a patient of hers and runs a high risk of suffering severe prolonged post-natal depression given her history. The assistance and maternal support from her mother is strongly recommended and she should be allowed to visit at this time of family crisis.

   xxiii.The review applicant’s payslips.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because she had not provided evidence of assets or liabilities which might encourage her to return to Sierra Leone, other than a bank statement; her employment status was not strong incentive to return; and the delegate was not satisfied the visa applicant intended a genuine temporary stay.

   Information to the Tribunal

   Written Submission, 8 November 2019

7. On 8 November 2019 the review applicant submitted copies of the following documents to the Tribunal:

   -A medical certificate from [Doctor A] stating she examined the review applicant on 4 October 2019. The review applicant was three months post-partum and suffering from post-natal depression. She would greatly benefit from her mother’s presence.

   -A letter from [Psychologist A], dated 29 October 2019, in support of the visa applicant’s Visitor visa application.  In [his] opinion the review applicant is experiencing extremely severe symptoms of depression, anxiety and stress. Her symptoms are a result of a recent marriage separation as well as previous court matters relating to domestic violence. She has identified her mother as a strong protective and supportive factor to help her in looking after her two children while she recovers from symptoms. There is a noticeable absence of adequate family support in Australia for [the review applicant]. It is his opinion that [the review applicant] and her 2 children's wellbeing will be at heightened risk if her mother is not granted entry.

   Written Submission, 17 February 2020

8. On 17 February 2020 the review applicant submitted the following information to the Tribunal:

   -A submission by the applicant’s agent stating that the review applicant’s husband came to Australia in 2014 on a [temporary] visa, and her sister, [and specified relatives] came to Australia in July 2011 on [permanent] visas. The circumstances in Sierra Leone in 2011 were vastly different to the circumstances facing the visa applicant now. The security situation has stabilised following the end of the civil war in 2002 and the outbreak of the Ebola virus in 2014-16. The review applicant no longer has contact with her father, who lodged the application which brought her to Australia on a humanitarian visa in 2006, along with a number of relatives.  The visa applicant is leaving behind [number] children who will be accommodated with a family friend while she is absent. The visa applicant has her own business in Sierra Leone. However, this is a small shop which resells second hand goods sent by relatives in Australia to her.  Where those goods are delayed she purchases [other products] locally to resell. There is little formal documentation, as is common in Sierra Leone, for such businesses and because she only relocated back to Sierra Leone in 2017. She is re-establishing the business with the assistance of her children. The review applicant is building a home for her and owns the land upon which this is being built. The visa applicant is using the profit from the sale of the second hand goods to build the house for herself and her children. She is re-establishing her life in Sierra Leone and has no desire to remain in Australia away from her young children. The visa applicant will stay with the review applicant to assist with the children and therefore her expenses will be minimal and will be met by the review applicant from the existing household expenses. The review applicant will be returning to work full time to support her family and is very concerned about how she will cope with this and the care of the children without her mother’s assistance during the transition back to full-time work.  The review applicant has [children of specified ages]. Since the birth of her baby she and her husband have separated, though they live in the same home. There have been issues of domestic violence, including an AVO which was subsequently withdrawn. The applicant has been diagnosed with postnatal depression and is struggling to cope with an infant and [age] year old without any partner or family support. She urgently requires the assistance and support of her mother. The visa applicant has two daughters and grandchildren in Australia. Her other daughter, [named] is going through a difficult time and has travelled to Sierra Leone to see her. If the visa applicant was to be granted a visitor visa this would enable her to assist both her daughters in Australia. She wishes to come to visit again in the future and would never jeopardise her ability to do this by failing to comply with the conditions on any visitor visa granted to her. She just wants an opportunity to show that she will comply and is a genuine visitor so that she can assist her daughter in her time of need.

   -A property transfer to the review applicant for land in Sierra Leone.

   -Receipts for purchase of goods.

   -An undated and unsigned bill of lading for a [size] tonne container of  ‘used household goods’ sent by the review applicant in Australia to the visa applicant in Sierra Leone.

   -A bill of lading issued [in] January 2020 for a [size] tonne container of  ‘clothes, TVs, monitors, toys, bicycles, air conditioners, mattresses, pianos, cool mans, carpets, and vehicles sent by [Mr B, the review applicant’s cousin,] in Australia to the visa applicant in [Country 1].

   -A letter from the visa applicant’s son about the visa applicant’s business in Sierra Leone.

   -A letter of support dated 5 February 2020 from [Sheikh A].

   -The visa applicant’s Bank statement showing a current balance of 26,706,472 Sierra Leonean Leone.

   -The review applicant’s bank statement showing current balances of $1,279 & $130.

   -The review applicant’s mortgage accounts bank statements showing that she has assets and is meeting her repayment obligations, and has savings of approximately $10,000.

   -The review applicant’s payslip.

   -A letter from [Doctor A], the review applicant’s GP, referring to the review applicant’s postnatal depression.

   -A letter from [Psychologist A], the review applicant’s psychologist supporting the need for the review applicant’s mother to come to Australia.

   -A letter from the review applicant’s aunt, [name], about her situation.

   -The review applicant’s baby’s [Birth Certificate].

   Tribunal Hearing

9. The review applicant appeared before the Tribunal on 24 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Fula and English languages.

10. The following is a summary of the information provided by the review applicant at the hearing:

    a.Her mother has lived in Freetown, Sierra Leone since 2017.  She lives there with [her children]. 

    b.She sometimes goes to [Country 1] for a few days.  She travels there by bus.

    c.The review applicant has no Birth Certificate.  It was lost during the problems that made her and her family flee.  She can prove the visa applicant is her mother through a DNA test if required.  She has photographs of them together in 2013 and 2017.  She also has [social media] posts which refer to her mother.

    d.The review applicant was born in [Town 1] in Sierra Leone on [date].  She is not sure where in [Town 1] she was born.  She remained in [Town 1] until about 1998 when she went to [Country 1] with her father.  Her mother went missing around that time. She learned her mother had returned to their home which was burned and was told the family had been killed. Her mother then made her own way to [Country 1].

    e.In 2006 when the review applicant was interviewed for her Australian visa she told the Department the name of her mother and that her mother was missing.

    f.In 2011 the review applicant wrote the visa applications for her sister and [other relatives]. She again included her mother’s details as her sister’s mother.  In 2013 she tried to sponsor her mother for a permanent visa to Australia.

    g.Her sister [named] has spent some weeks with their mother in Sierra Leone. She returned to Australia last week.

    h.The review applicant has separated from her husband but they remain living in the same house.  The house is in both their names.  Her husband still provides financial support and they share expenses ’50:50’.  However he provides little other support for the care of their children as he works seven days a week in three jobs.

    i.The review applicant told her father she thought her marriage was not working because of her husband’s lack of support and that she would like to be out of her marriage and to start over.  Her father became very angry with her because divorce is not allowed in their culture.  She has largely ceased contact with her father although he attended her baby’s naming ceremony.

    j.They have a four bedroom house so will have room for her mother to stay when she visits.

    k.She would like her mother to visit for three to six months. She will try to manage when her mother leaves.  She will work three days a week and has arranged child care for her two children. The childcare place is close to her home.

    l.The review applicant would like to sponsor her other siblings to visit her in Australia in the future. She would also like her close friend [named] to visit her .

    m.She does not know why her mother’s affidavit in April 2019 states that her [children] are residing in [Country 1].

    n.Her mother buys [products] in bulk and then sells them at her shop.  She also sells the used goods that the review applicant ships to her. The review applicant pays for the goods and the shipping costs so her mother keeps all the profits from the sales.  She is using the money to build a house for herself and her children. 

    o.The review applicant’s cousin, [Mr B], also ships used goods to his step-brother in [Country 1] for him to sell. [Mr B] ships them to the visa applicant because she has the proper ID to organise the release of the goods.  She travels to [Country 1] to do this for her cousin.

    p.The visa applicant had a customary marriage, not a legal marriage, to a man who has disappeared. She still considers herself traditionally married to him even though he has disappeared, so she describes him as her de facto.

    q.The review applicant works as [an Occupation 1] in Australia. She would like to do this work in Sierra Leone in the future.

    r.Her mother has no political or religious problems in Sierra Leone. Christians and Muslims intermarry in Sierra Leone. She has no enemies in Sierra Leone.  [Her location] is a very quiet part of Freetown.

    s.The review applicant would like her mother to be able to visit her and her sister in Australia when they need support from time to time.  Their mother understands them well and doesn’t blame them for their difficulties like their father does.

    t.[Another relative] recently visited Australia from Sierra Leone and returned to Sierra Leone before her visa expired.

11. The following is a summary of the information provided by the visa applicant at the hearing:

    a.She has been living in Freetown, Sierra Leone since 2017, with her [children]. 

    b.She sometimes goes to [Country 1] to get goods to sell in her shop in Freetown.  She gets onions there and also used clothes sent to her in container by her daughter in Australia.  Sometimes the shipments are direct to Freetown.

    c.When she made the affidavit last year her children were residing in [a place in Country 1] with their sibling from their father’s side.  The review applicant brought them to Sierra Leone when their school closed in July.  They all wanted to be together in Freetown.

    d.The visa applicant’s shop is in [a named part of] Freetown.  Her daughter, the review applicant, has some photographs of the shop and business which she can submit to the Tribunal.

    e.Her daughter, the review applicant, was born in a small hospital in [Town 1] on [date].

    f.The visa applicant does not have much difficulty living in Freetown.  She is managing there with her children.  She has no political or religious problems.  There are no longer such problems in Sierra Leone.  She teaches religion to the children at her mosque.   She has no enemies in Sierra Leone.  She is in good health. She has mother-crafting skills and helps the children in the mosque.

    g.Her  financial situation is okay and she has income she is using to build a house on the land the review applicant gave her.  The review applicant and her sister also help her financially with raising her other children.

    h.She would like to visit Australia to help her daughter with her children. She will not stay in Australia.  She likes living in Freetown.  She likes her business selling goods.  She worries if she comes to Australia she will have to live in a lock up house. She doesn’t like to be indoors or just sitting at home.  She likes to live in open conditions as she does  in Freetown where she can be outdoors with lots of people and neighbours.

    Post-Hearing Submission

1. On March 2020 the review applicant submitted the following information to the Tribunal:

   -Several photographs of the visa applicant at her shop in Sierra Leone.

   -A [social media] posting by the review applicant wishing her mother, the visa applicant, a happy mother’s day, with an accompanying photograph of the visa applicant and the review applicant together at the visa applicant’s wedding.

   -The details of a person sponsored to visit Australia by the review applicant’s cousin, and a person sponsored to visit Australia by the review applicant’s friend.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. 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.

3. In the present case, the visa applicant seeks the visa for the purposes of visiting her daughter in Australia.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221.

   Clause 600.211

4. 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)).

5. The visa applicant has not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by her.

6. 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.600.611(3)):

   ·8101 – must not work in Australia

   ·8201 – must not engage in study or training in Australia for more than 3 months.

7. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The Tribunal accepts that the visa applicant has access to some savings as well as her daughters’ financial support while in Australia. There is no indication before the Tribunal that the visa applicant intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied she intends to comply with condition 8101.

8. There is no evidence or indication that the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

9. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

10. The Tribunal accepts that the visa applicant is a now single woman from Freetown in Sierra Leone. The Tribunal accepts the visa applicant’s [youngest] children also currently reside with her in Freetown and that her sister lives in Freetown with her family. The Tribunal considers that the presence of the visa applicant’s youngest children and sister represents significant incentive for her to return to Sierra Leone after a short stay in Australia.

11. The Tribunal accepts that the visa applicant has reasonably stable and valued income from her business selling used goods and [other products]. The Tribunal accepts that this business can be managed by her [age] year old son while she is in Australia.    

12. The Tribunal gives substantial weight to the good migration history of the review applicant, her sister, [and specified relatives] in Australia. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to her family and relatives’ immigration compliance in Australia. 

13. The Tribunal notes the review applicant’s wish to sponsor other family members and a close friend to visit Australia in the future.  The Tribunal considers this further motivation for her to ensure the visa applicant does not breach any of her visa conditions and that she departs Australia before the expiry of her visa. 

14. The Tribunal notes the visa applicant previously applied for a permanent visa to Australia in 2013. However this was approximately seven years ago at a time when she was still living in [Country 1] when her situation remained unstable. The Tribunal accepts that since this time she has established herself with her [children] in Freetown and is living without apparent difficulty there. The Tribunal also accepts that the security situation in Sierra Leone has greatly improved. On the information before it the Tribunal is satisfied that the visa applicant does not have any concerns for her safety or security in Sierra Leone.

15. The weight of the evidence supports a finding that the visa applicant intends to return to Sierra Leone after a visit to Australia. The Tribunal is therefore 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.

    Clause 600.212

16. Clause 600.212 requires that the visa applicant has adequate means to support herself, or access to adequate means to support herself, during the period of her intended stay in Australia.

17. The Tribunal accepts that the review applicant’s expenses in Australia will be relatively minimal in that she will be accommodated and fed by her daughter, the review applicant. The Tribunal accepts the review applicant has work as [an Occupation 1] and can afford to support her mother’s stay during her visit. The Tribunal is therefore satisfied the review applicant has access to adequate means to support herself during her stay in Australia and that the requirements of cl.600.212 are met.

    Clause 600.221

18. Clause 600.221 requires that the visa applicant intends to visit Australia to visit an Australian citizen or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the visa applicant; or for any other purpose that is not related to business or medical treatment.

19. The applicants have not been able to provide documentary evidence of their relationship.  However their information about the time and place of the review applicant’s birth was consistent. The review applicant has also maintained to the department since 2006 that the review applicant is her mother and provided consistent details about her mother in numerous visa applications. The Tribunal also  notes the review applicant’s volunteered willingness to undergo DNA tests to establish that the visa applicant and she are mother and daughter.  She has provided a past wedding photograph of herself with the visa applicant in which she identified the visa applicant as her mother.  There is no indication before the Tribunal that the applicants are not mother and daughter. Therefore on the basis of the evidence before it the Tribunal is satisfied they are mother and daughter.  As the visa applicant wishes to travel to Australia to visit the review applicant the Tribunal finds that the requirements of cl.600.221(a) are met.

    DECISION

20. 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;

    ·cl.600.212 of Schedule 2 to the Regulations; and

    ·cl.600.221 of Schedule 2 to the Regulations.

    Melissa McAdam
    Member