2210574 (Migration)

[2023] AATA 1066

2210574 (Migration) [2023] AATA 1066 (25 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2210574

MEMBER:Mara Moustafine

DATE:25 April 2023

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.

Statement made on 25 April 2023 at 4:31pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visit to meet grandchildren – migration history – property and property ownership – offer of a security bond – balance of family in home country – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 Home Affairs on 27 June 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s. 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 6 April 2022. 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.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

   Evidence before the Department

4. Based on the visa application, the visa applicant is [an age]-year-old citizen of Nigeria born in [her home town] in Imo State and living in Enugu. She is seeking the visa to visit her son and his family visit in Australia for up to 12 months. The visa applicant is a widow and also has [number] adult children living in Nigeria. She is self-employed in her trading company ([named]) since 28 February 2022. All costs of her trip will be covered by her son, the review applicant. She has never travelled to Australia previously. Her visa applications to Australia have been refused on several occasions.

5. Documents submitted to the Department in support of the visa application included an invitation letter from the review applicant dated 25 March 2022 stating that he wished for his mother to visit him and to meet his children, whom she has not seen since their birth. He will provide accommodation, living, travelling and other expenses for his mother’s visit. Copies of the review applicant’s birth certificate; a bank statement dated 12 March 2022, a letter dated 10 September 2021 confirming his employment as a Case manager at [Employer 1] since 13 April 2021 on a full-time basis with an annual salary of $85,000; copies of the visa applicant’s marriage certificate; business license registration dated 28 February 2022; certificate of shop rental for one year; power of attorney certificates dated 24 April 2012 and 28 January 2021, indicating property ownership; her overseas visitor health cover letter dated 20 March 2022 and Covid-19 vaccination card.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because she was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of the visa grant. In particular, the delegate placed weight on the adverse migration history of the applicant’s family member and was not satisfied that the applicant had provided evidence of strong economic or financial incentive to return home. She queried how the applicant was able to afford to be absent from her business for the extended period of her visit, noted that the documents provided as evidence of the applicant’s current ownership of property were outdated and highlighted the absence of evidence that the applicant had previously undertaken international travel.

   Evidence before the Tribunal

7. On 22 July 2022 the review applicant applied to the Tribunal for a review of the delegate’s decision, a copy of which he provided to the Tribunal for the purposes of the review.

   The Hearing

8. The review applicant appeared before the Tribunal by MS Teams video conference on 18 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the visa applicant in Nigeria. The Tribunal hearing was conducted with the assistance of an interpreter in the Igbo language.

9. At the hearing the review applicant told the Tribunal that he first came to Australia in 2011 on a Student visa but only finished one course, then applied for a Protection visa, which was refused. He was later granted a Partner visa. Although now separated from that partner, they have shared custody of their two children, aged [specified ages]. He is now working as for [Employer 2] as [an occupation 1] on a casual basis. He stopped working with [Employer 1] in 2023 as it was a 9 to 5 job and he needed more flexibility to be able to look after his children.

10. The review applicant said that the major purpose of his mother’s visit to Australia is for her to meet and get to know his children, who have not been to Nigeria or met anyone from his side of the family. He and their mother don’t want the children to travel to Nigeria until they are older because of security, as well as cost. He rejected the idea that his mother might stay to help him with his children, saying that the hard part of child rearing was now behind him and he had a new partner.  He only wanted his mother to visit for 3 – 6 months.

11. The applicant told the Tribunal he was aware that he did not have a good visa history and that his application for a Protection visa, may have played a part in his mother being refused visitor visas on two occasions. However, he was now doing things right, working and studying social work online through [a named] University. He volunteered that he was ready to put down a bond of $10,000 as assurance that his mother would leave Australia within the timeframe of her visa and not apply for any other visa. 

12. The visa applicant told the Tribunal that she was very eager to visit Australia to meet her grandchildren and her son, whom she last saw in 2016. She wishes to come for 3-6 months and then to return to Nigeria where she has [number] children and [number] grandchildren. She also needs to return to her business selling provisions which her manager will run while she is away. She has no intention of staying to look after his children as he has met someone and may get married again.

13. After the hearing the review applicant submitted a statutory declaration in which he stated that he was ready to provide a security bond of $10,000 as assurance that his mother would not overstay the duration of her visa or extend her stay in Australia; his notice of assessment for 2022; his offer of casual employment from [Employer 2] dated 28 March 2023; nine recent payslips from [Employer 2]; a screenshot of his pay [Employer 2]; and a and a copy of the biodata pages of the visa applicant’s Nigerian passport.  

14. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

17. 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)).

18. As the visa applicant has not previously visited Australia, the question of previous compliance is not relevant. There is no evidence before the Tribunal of non-compliance with conditions of his previously held visa on the part of the review applicant.

19. 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

20. Based on the documentary evidence provided by the visa applicant and oral evidence of both the review and visa applicants at hearing, the Tribunal accepts that the review applicant has enough funds to cover his mother’s travel expenses and will provide accommodation for her in Australia. It accepts her written evidence that she does not intend to work or to study while in Australia. In these circumstances the Tribunal is satisfied that the visa applicant intends to comply with condition 8101 and Condition 8201.

21. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal accepts the evidence of both visa and review applicants that the main purpose of the visa applicant’s visit is to meet and get to know her Australian born grandchildren whom she has never met and for them to meet their father’s side of the family. The Tribunal also accepts that her [number] children and [grandchildren] in Nigeria, as well as her business, which she will leave under the supervision of a manager during her absence, give the visa applicant incentive to return home. The Tribunal accepts that the review applicant recognises the adverse impact his migration history has had on his mother’s ability to visit Australia and gives weight to his offer to provide a substantial security bond as an assurance that his mother will return home within the timeframe of her visa.

22. Having weighed all the factors which would act as an incentive for the visa applicant to return to Nigeria at the end of her stay against those factors which might encourage her to remain, the Tribunal is satisfied that the visa applicant has a genuine intention to return to Nigeria at the end of any permitted stay.  For the above reasons the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal finds that the requirements of cl 600.211 are met.

    DECISION

23. 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.

    Mara Moustafine
    Member