2217252 (Migration)

[2024] AATA 168

2217252 (Migration) [2024] AATA 168 (19 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2217252

MEMBER:Melissa McAdam

DATE:19 January 2024

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 19 January 2024 at 11:01am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s family migration history – family in Nigeria – financial resources – executive level employment in home country – study plans in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359
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 21 November 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 7 November 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.

   Visa application

4. The visa applicant is the brother of the review applicant.  The review applicant is an Australian citizen.

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

   a.He is a Nigerian citizen, born in [specified year].

   b.He wants to visit Australia for tourism for approximately two weeks.

   c.He is married. He has a [specified children]. His wife and children will stay in Nigeria while he visits Australia.

   d.He is employed by [Agency 1] in Nigeria and has worked for them since 2010.

   e.He will fund his travel to Australia through his savings.

   f.He has previously travelled to Australia. 

   g.He previously applied for a Student visa and his application was refused.

6. With his visa application the visa applicant provided the following document copies:

   -The visa applicant’s Bank Account statement.

   -Birth Certificates for the visa applicant’s [children].

   -The visa applicant’s National Identification paper.

   -The review applicant’s Rates Notice.

   -The review applicant’s Bank Account statement.

   -A declaration by the visa applicant’s wife that she is married to the visa applicant and has adopted his surname.

   -The visa applicant’s Marriage Certificate.

   -A flight booking by the visa applicant.

   -A letter from the [manager] of [Worksite 1] in Ibadan state, dated 31 October 2022, stating that the visa applicant is a civil servant who works as [an occupation 1]. The visa applicant wishes to come to Australia to attend his brother’s graduation ceremony and has been granted three weeks’ leave.

   -A letter of appointment to employment addressed to the visa applicant.

   -A confirmation of employment addressed to the visa applicant from [Employer 1], dated 6 July 2012.

   -A letter of invitation to the visa applicant from the review applicant.

   -A Property Title Deed in the visa applicant’s name.

   -The visa applicant’s Polio Vaccination Certificate.

   -A record of payslips to the visa applicant from his employer.

   -A copy of the review applicant’s Australian passport.

   -The review applicant’s business Bank Account Statement.

   -The visa applicant’s Nigerian passport with a visa to [Country 1] issued in [2022].

   -The visa applicant’s Nigerian passport showing entry and exit stamps for other countries.

   -A declaration regarding the birth of the visa applicant by his father.

   -[An occupation 1] degree in the visa applicant’s name, dated [date].

   -A Nigerian Police Clearance Certificate for the visa applicant.

   -A request by the visa applicant for ‘fast-track’ processing.

   -A Travel Insurance Certificate in the visa applicant’s name.

   -The visa applicant’s employment ID card.

   -A letter from the visa applicant’s wife consenting to the visa applicant’s travel to Australia.

   -An itinerary for the visa applicant’s visit to Australia.

   -The visa applicant’s Nigerian Taxpayer ID card.

   -A letter dated 14 November 2014 from the [Employer 2], confirming the visa applicant’s promotion to [Executive Grade 1].

   -A letter dated 25 August 2021 from the [Employer 2], confirming the visa applicant’s promotion to [Executive Grade 2].

   -A letter dated 27 May 2022 from the Director of the Civil Service Commission confirming the upgrade of the visa applicant’s employment to ‘[Executive Grade 2]’.

   -The visa applicant’s expired Nigerian passport.

7. The delegate refused to grant the visa on the basis that the visa applicant had not demonstrated a sufficient economic incentive to depart Australia at the end of his proposed stay.

   Review information

8. The review applicant provided the following additional materials to the Tribunal:

   -A screenshot of an invitation to the review applicant’s graduation ceremony [in] December at [University 1].

   -The review applicant’s Australian Citizenship Certificate.

   -The visa applicant’s Travel Insurance Certificate.

   -The visa applicant’s Flight Booking.

   -A letter of invitation from the review applicant to the visa applicant.

   -The visa applicant’s itinerary for his visit to Australia.

   -A letter from the review applicant.

   -Photographs of the visa applicant’s family, home and car.

   -The review applicant’s Nigerian passport.

9. In his letter the review applicant states:

   …
   Firstly, the applicant followed his last substantive Visa to Australia and other countries. The previous substantive Visa to Australia was in 2015, when he attended my wedding; alongside [family members]. They stayed in Australia for only 14 days and returned to Nigeria.

   Recently, he travelled to [Country 1] to attend [International Event 1], and he has since returned to Nigeria for his family and work commitments. There is no evidence that the applicant has breached the conditions of his substantive Visa or any other factors that indicate that the applicant is planning to breach the needs of his prospective Australia visa.

   Factual Issue

   The immigration officer claimed the applicant "has provided no evidence of the current personal ownership of property of significant assets".  The same land evidence was provided when the applicant secured the last substantive Australia visa. The land has since appreciated in value as ongoing construction exists. It appears that the immigration officer errs by failing to request more information.

   Similarly, the immigration officer asserts that the applicant failed to show commitment or incentive to return to Nigeria; and did not provide supporting documents such as invitation letters or itineraries.

   The information portal in the applicant's immi account reveals that all supporting documents were provided to support his visa application.

   a)The applicant's circumstances are that of [an occupation 1] with a stable job and a nuclear family. The applicant also has a personal business that he is committed to; this is evidenced in the two bank statements provided by the applicant. On one hand, the applicant provided an account where his salary is deposited; on the other, he provided a business account. These are clear evidence of his financial and relationship commitments that could not be jettisoned for a tourist visa. The applicant has a family to return to, and he mentioned these people in his application.

   b)Commitments: The applicant added proof of work that he will be returning to after his visit, he has a stable business and family in Nigeria.

   c)Incentive to return to Country of residence: The applicant, as mentioned above, has a family, a stable job, a business, land and a house to return to.

   FACTORS FOR DECISION:

   (I)Age criteria: Age has no relevance in a tourist visa in which he is merely coming to visit me, his older brother, my wife, [and our children].

   (II)Purpose of the visit and supporting evidence: The applicant is coming to visit for my graduation; he supplied a supporting document that I had written to formally invite stating his invitation to the event of my graduation and to support him financially and accommodation during his stay.

   (III)First Bank Statements: The applicant provided evidence that he can support himself and proof of his personal and work bank account.

   (IV)Demonstration of little Evidence of the applicant's intended travel itinerary:-

   -             The applicant provided my contact details in his application and proof in the letter that I wrote regarding the invitation.

   -             Planned activities: I have attached to my application the itinerary that was provided in the applicant's application regarding his plans whilst here with us.

   -             Accommodation arrangement: My brother, the applicant, will stay with my family and me for the entirety of his stay.

   -             Transportation arrangements: Flight tickets were provided to show how he will travel to Australia and return to Nigeria.

   -             We expected the decision maker explanation on "more evidence needed" because the applicant has provided more than what was expected according to the checklists provided in subclass 600

   -             The immigration officer claimed “no evidence of personal ownership of property of significant asset was provided by the applicant:”, in fact, the applicant provided joint ownership of the land asset and survey plan of their property. This is the same property provided by the applicant for the granting of Visa his tourist visa in 2014, supported by the marriage certificate that showed that the applicant [named] and has been married with [number] children to [his wife’s name]. The couple has since built and is currently residing on the same land/property. Please, see the applicant’s attached family photos for the substantial land and property in question.

   …

10. On 5 January 2024 the review applicant submitted the following materials:

    -A further written submission by the review applicant.

    -Photograph of the review applicant’s graduation.

    -The visa applicant’s bank account details.

    -The visa applicant’s passport pages showing entry to and exit from [Country 1] in November 2022 and stamps for other countries in prior travel.

    -A list of family members who had travelled to Australia including the applicants’ [named siblings], who travelled here with the visa applicant in January 2015 and departed two weeks later.  The list also includes a brother, [Brother A], whose Australian arrival and departure dates are described as ‘unknown’.

    -A Certificate of Valuation for the visa applicant’s home in Nigeria.

    Tribunal Hearing

11. The review applicant appeared before the Tribunal on 11 January 2024 to give evidence and present arguments. The Tribunal also received evidence from the review applicant’s wife and from the visa applicant.

12. The following is a summary of the information provided by the review applicant and his wife at the hearing:

    a.Although the review applicant’s graduation has passed the visa applicant would still like to visit Australia to see [their children] here.

    b.The review applicant has [number] children, [names and years of birth].  The review applicant and his wife married in January 2015.

    c.[Child A’s] biological mother was a national of [Country 2]. The applicant married her in [Country 2] but she left him about two months after they arrived in Australia.  They are divorced and the review applicant now has full custody of [Child A].

    d.The review applicant graduated from a [named degree] at [University 1]. He is now halfway through a [further] course there as he intends to become [an occupation 2].

    e.The review applicant has returned to Nigeria twice in recent years, in 2018 and 2020. He travelled there with his wife and [children].

    f.The visa applicant has a civil service career with the [named] State government. He is an [occupation 1] at national [occupational] level. He has worked in various sectors of the state government as a civil servant. 

    g.The review applicant is not able to speak about his other brother [Brother A] who is also in Australia. The review applicant invited [Brother A] to come to his graduation ceremony but [Brother A] said he could not make it despite that he lived in Melbourne. The review applicant was appalled by this as it meant he had no one from his Nigerian family at his ceremony. [Brother A] has refused to tell the review applicant about his immigration history in Australia.

    h.The Tribunal asked the review applicant why he came to Australia but did not return to Nigeria before the expiration of his visa. The review applicant responded he would have needed to go to [Country 2] but he didn’t have residence rights there. He could not go to Nigeria because at the time there was a lot of social unrest there and he was afraid his [Child A] would be targeted for kidnapping because he looks different.  The Tribunal put to the review applicant that he had returned twice to Nigeria since obtaining permanent residence and taken [all] of his young children there. The review applicant responded that before there was a great deal of unrest but the situation depends a lot on the President. The former President was from the north and had no empathy but the current president, although he is also Muslim, is from the south.

    i.Under s 359AA of the Act the Tribunal put details about [Brother A’s] immigration history in Australia to the review applicant. The review applicant responded that Australia is built off the backs of immigrants and people should not be judged for the difficult paths they took to obtain citizenship here. 

    j.The review applicant does not know who [Brother A] married. He knows he was married in Nigeria.  The review applicant knows whether [Brother A] had children in Nigeria but he chooses not to disclose this information in the interest of [Brother A’s] privacy.

    k.Under s 359AA of the Act the Tribunal put details from the review applicant’s former Tribunal decision record to the review applicant which indicated he had provided unreliable information in the past. The review applicant chose not to respond to or comment on this information.

    l.The visa applicant lives with his wife and [children] in Nigeria. The applicants’ [specified family members] also live near the visa applicant in Ibadan.  The applicants’ father died in about 2007 and their mother died when the review applicant was young.

    m.The review applicant thinks the visa applicant would like to visit Australia for about three weeks.

    n.The review applicant would like to invite his [specified family members] to visit him in Australia in the future. He realises that if the visa applicant comes to Australia and breaches any of his visa conditions or overstays it will cause difficulty to the rest of the family to be able to visit Australia.

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

    a.The Tribunal asked the visa applicant to provide his employment history since 2018. He responded that in 2018 he was employed [by Employer 2]; from 2019 to 2021 he was posted to [Employer 3]; from late 2021 to September 2022 he was posted to [Employer 4]; from 2022 to 2023 he was posted to [Worksite 1] in [Agency 1]; and from then to currently he has been with [Employer 5].

    b.The visa applicant will return to Nigeria and not stay here like his two brothers did because he has his family and job in Nigeria. He just wants to visit his loved ones in Australia. He has travelled to other countries and always came back to Nigeria.  In November 2022 he was in [Country 1] for a work conference, [International Event 1], in [city]. There he gathered information which he could take back to Nigeria to apply in his work, such as new ways to [conduct his occupation]. There was information about governance and incorporating input from the people impacted to improve decisions and better motivate people in their jobs.

    c.The visa applicant would like to visit Australia for two weeks up to three months. If the opportunity arises he would like to bring his family to travel to Australia with him one day.  He would also like to apply for a Student visa in Australia one day as he can collect Study leave from his employer to do so.  He could then learn about [professional business developments] and new ways of doing things which he can take back to Nigeria and improve his career there.  He can bring value to his country and the way of life there. He could make more money in Nigeria because of the new knowledge he would have.

    d.He would bring his family with him if he had a Student visa. His wife would also be able to study in Australia.

    e.He understands if he obtains a Visitor visa he would not be able to study for more than three months in Australia.

    f.If he visits Australia his brother can show him around and how things work here.

    g.He would not remain in Australia because he has more future in Nigeria. He is a [executive level] in the state government and will soon be a [higher level], one of the youngest to advance.  He has more opportunity in Nigeria and can be ahead of his colleagues there.

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

    a.The visa applicant talks a lot.  In the visa applicant’s year 10 the review applicant discovered that the visa applicant could not read and write so he undertook to teach the visa applicant to read and write. Now the visa applicant is a high level [occupation 1] and government civil servant.

    b.The visa applicant would like to study in Australia, possibly a Masters, but the review applicant is unsure the visa applicant could afford it as it is expensive and the visa applicant would like to come with his family if he studied here. The visa applicant’s wife works for the state government too.

    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.

1. In the present case, the visa applicant seeks the visa for the purpose of visiting his brother in Australia . This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

2. 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)).

3. The Department’s movement records for the applicant show that he was granted a Visitor visa in March 2015.  He travelled to Australia [in] January 2015 and departed [later in] January 2015, before his visa ceased.  Conditions 8101 and 8201 were attached to the visa.  There is no indication before the Tribunal that the visa applicant breached either of these conditions while in Australia.  The Tribunal therefore gives this factor substantial weight in the visa applicant’s favour.

4. 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.

5. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The Tribunal also accepts that he has access to sufficient funds to support himself during a short visit to Australia. The Tribunal is therefore satisfied that he does not intend to work while in Australia.

6. The applicant stated he wished to study in Australia but there was no indication he would do so in breach of his visa conditions. Condition 8201 allows study in Australia for up to three months.  He may therefore undertake a course for less than three months without being in breach of this condition.  He has stated that if he wishes to study for longer he will apply for a Student visa in the future, after he returns to Nigeria. In the circumstances the Tribunal is satisfied that the visa applicant intends to comply with Condition 8201.

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

8. The Tribunal accepts that the visa applicant’s wife and [children] all live in Nigeria. The Tribunal considers that the presence of these close family members in Nigeria represents substantial inducement for the visa applicant to return there.

9. The Tribunal also accepts that the visa applicant has an established career as a senior level [occupation 1] in the state civil service in [named] state.  The Tribunal considers he would want to return to Nigeria to maintain and resume his employment after visiting Australia.

10. The Tribunal notes that both the review applicant and his other brother [Brother A] came to Australia on temporary visas, did not depart before these visas ceased, and changed their status to permanent residence while here.  This indicates that the visa applicant may also do this, particularly given his present circumstances are not dissimilar from those of his brothers.  Balanced against this concern are the facts of the visa applicant’s previous travel to Australia without attempting to change his status here; and his more recent travel to other countries, including [Country 1], without overstaying his visa requirements.

11. The visa applicant has been quite frank regarding his wish to obtain a Student visa in Australia and to bring his family with him during his studies here.  The Tribunal accepts that if an opportunity arises for him to do so while in Australia then the visa applicant may try to take such an opportunity. The Tribunal notes that Condition 8503 is not a mandatory condition for a Visitor visa in the tourist stream. This means that the visa applicant could apply for a Student visa while in Australia without being in breach of the mandatory conditions, as long as he studies for only up to three months while on the Visitor visa.

12. The possibility of the visa applicant applying for a Student visa while in Australia if the opportunity arises, does not mean he does not have a genuine intention to stay temporarily in Australia. There are many unknowns as to whether the visa applicant would be able to apply for a Student visa here, including the availability of a course, whether or not he would meet the eligibility criteria for a relevant course, and whether or not he could afford to study in Australia, as well as his concern that he would want his family with him if he studied here.  Given this significant level of uncertainty it remains hypothetical only as to whether the visa applicant can and would apply for a Student visa while visiting Australia. The Tribunal considers that regardless of the visa applicant’s hope to study in Australia in the future, at this stage he primarily wants to obtain a Visitor visa to be able to visit.  There is no tangible or specific evidence that his desire to study here overrides his intention to visit temporarily.

13. The Tribunal accepts that the review applicant has other close family members in Nigeria who could visit Australia in the future. It would therefore be important to him and the visa applicant to maintain a good compliance record by the visa applicant to improve the possibility other family members may be granted Visitor visas to Australia in the future. The Tribunal considers this motivation for the review applicant and the visa applicant to ensure the visa applicant complies with his visa conditions and departs Australia before his Visitor visa expires.

14. In the Tribunal’s view the incentives for the visa applicant to return to Nigeria outweigh any reasons for him to remain in Australia past the expiry date of a Visitor visa. 

15. 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, and finds that the requirements of cl 600.211 are met.

    DECISION

16. 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.

    Melissa McAdam
    Member