2304951 (Migration)

[2024] AATA 2078

2304951 (Migration) [2024] AATA 2078 (31 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Emete Joesika (MARN: 0100301)

CASE NUMBER:  2304951

MEMBER:Paul Windsor

DATE:31 May 2024

PLACE OF DECISION:  Melbourne

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 31 May 2024 at 3:28 pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting family – applicant has significant family ties in home country – family responsibilities in Liberia provide a strong incentive for him to return to Liberia– age and background as a land-holding farmer – applicant is well-established in Liberia – satisfied that the visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 February 2023 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 27 January 2023. 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 (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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate found the visa applicant had not provided evidence of sufficient personal, business, employment, financial and cultural ties to Liberia for them to be satisfied that he genuinely intends to stay temporarily in Australia.

5. The review applicant sought review of this decision on 6 April 2023. She provided the Tribunal with a copy of the delegate’s decision record.

6. The review applicant appeared before the Tribunal via video conference on 30 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr [A]. It was intended that the visa applicant, Mr [B], join the hearing by telephone from Liberia, but it was not possible for the Tribunal to connect with him by telephone despite multiple attempts over the course of the hearing.

7. The review applicant was represented in relation to the review. The representative also participated in the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purpose of visiting his daughter and her family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

11. 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)).

12. As the visa applicant has never travelled to Australia or held an Australian visa previously, this consideration is not relevant in his circumstances.

13. 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.

14. The visa applicant is the [age] year old father of the review applicant, who is aged [age] years. In his visa application it stated that he lives in Monrovia, the capital of Liberia. It was stated that he has [children], as well as a[age] year old brother in Liberia. It was stated that he is a self-employed farmer. Supporting documentation was provided with the visa application indicating that the visa applicant has [land] in [a] County, Liberia on which he grows cocoa and sugar cane. A supporting submission by the representative notes that the visa applicant has children and grandchildren in Liberia whom he provides for financially and his farming activities and family responsibilities in Liberia provide a strong incentive for him to return to Liberia after a visit to Australia to see his daughter and her family.

15. The review applicant advised at the hearing that she came to Australia in 2010 on an offshore humanitarian visa with her mother, three brothers and a sister, sponsored by another brother. She indicated they were living in a refugee camp [in] West Africa having fled Liberia due to the civil war. She indicated that she met her husband, Mr [A], in Australia. Mr [A] indicated he came to Australia in 2005 from a refugee camp [after] fleeing Liberia due to the civil war. The review applicant advised that she and her husband now have four children, three sons and a daughter, aged from [age] to [age] years.

16. The review applicant indicated that her father and mother separated and she understands that her father is in a new relationship, but commented that she doesn’t know too much about that. She indicated that he lives with his four adult children and their families and his brother in Liberia.

17. The Tribunal has also considered all other relevant matters (cl 600.211(c)). In this regard, the Tribunal shared with the review applicant some points from Britannica online regarding the economy of Liberia,[1] and the 2024 Freedom House, Freedom in The World report for Liberia.[2]  The Tribunal observed that the Britannica report indicates that the Liberian economy is predominantly agrarian. It notes that the economy was disrupted by civil war in the early 1990s, but since the end of the conflict in 2003, and particularly since a democratically elected government was inaugurated in early 2006, efforts to rebuild the country’s economic infrastructure have been under way. Cultivation of cash crops, including cacao (grown for coca beans) is increasing.

    [1] Liberia - Trade, Agriculture, Mining | Britannica

    [2] Freedom House, Freedom In The World 2024, Liberia.

18. The Tribunal observed that the Freedom in the World report scores Liberia 64/100 (PARTLY FREE), 30/40 for political rights and 34/60 for civil rights. The report comments, among other matters, that Liberia has enjoyed two decades of peace and stability since the second civil war ended in 2003, with the country making considerable progress rebuilding government capacity, re-establishing the rule of law, and ensuring citizens’ political rights and civil liberties. The report notes that Liberia enjoyed its first peaceful transition of power in decades in 2017, and the 2023 elections were especially competitive. It notes, however, that corruption, impunity, and violence against women are still major problems.

19. The representative commented that Liberia is a third world country but added that the visa applicant has a large area of farmland on which he grows and processes cocoa and sugar cane. He indicated that, while the visa applicant wishes to visit his daughter and grandchildren in Australia, he does not have any intention to remain in Australia long term as his farm and his life is in Liberia and he derives a strong sense of pride from that. He commented that the Liberian economy is expanding, the visa applicant has his farm and his work and does not want to be away from his family and friends in Liberia.

20. Mr [A] commented that his father-in-law’s farm is doing well, adding that he has purchased a cane-crushing machine so he can process sugar-cane. He said it would bring his father-in-law great joy to be able to visit and see his grandchildren face to face but indicated his life is in Liberia. He added that it would cost him $20,000 to take his family of six to Liberia to see the visa applicant, which he can ill afford.

21. Given his age and background as a land-holding farmer, the Tribunal is satisfied the visa applicant would not work in Australia in breach of condition 8101 or undertake training or study in excess of three months in breach of condition 8201. The Tribunal considers the key issue in this matter is whether the visa applicant would abide by condition 8531 and depart Australia within the permitted stay period, if granted the visa.

22. In this regard the Tribunal has given careful consideration to the country information, which indicates that Liberia has rebounded from the impacts of the civil war which ended in 2003. The economy is growing and political and civil rights have improved greatly. The Tribunal is also satisfied that the visa applicant is well-established in Liberia, is economically secure and has a strong attachment to his farm, extended family and friends in Liberia. Consequently, the Tribunal is satisfied that the visa applicant will abide by condition 8531 and depart Australia before the end of his permitted stay.

23. For the above reasons, therefore, 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

24. 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.

    Paul Windsor
    Member