Adeoye (Migration)

[2020] AATA 4335

Adeoye (Migration) [2020] AATA 4335 (14 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Adetayo Adewunmi Adeoye

VISA APPLICANT:  Mr Adeleke Adetayo Adeoye

CASE NUMBER:  1928598

HOME AFFAIRS REFERENCE(S):          BCC2019/3754945

MEMBER:Stavros Georgiadis

DATE:14 October 2020

PLACE OF DECISION:  Adelaide

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 14 October 2020 at 3:31pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary stay for purpose of visa – visiting brother and undertaking medical qualification examination – intention to comply with conditions – incentives to return – professional employment, family, fiancée and social network in home country – compliant travel by other family members – discrepancies in some documents – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, conditions 8101, 8201, 8503, 8531

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 2 October 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 visa applicant applied for the visa on 29 July 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.

3. 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 12 February 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purpose of visiting his brother in Australia over a period of up to three months and to undertake a medical qualification examination conducted by the Australian Medical Council Limited (AMC CAT MCQ) whilst in Australia.  His brother is the review applicant who resides in Bordertown, South Australia. This (visiting a close relative) is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. 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)).

10. The accepted oral evidence is that the visa applicant has not previously travelled to Australia.  Accordingly, there is no evidence before the Tribunal of either compliance or non-compliance with previous visa conditions.  There is no evidence before the Tribunal of any travel outside of the visa applicant’s home area of Nigeria to demonstrate compliance with travel visa conditions in other countries.

11. The Tribunal finds no evidence of compliance or non-compliance by the visa applicant with conditions of any last substantive visa held, or any subsequent bridging visa: (cl.600.211(a)).

12. 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).

    ·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.

13. Condition 8101 – must not work in Australia. The applicant reiterated that the purpose of the visa applicant’s proposed visit is to undertake the medical qualification assessment and to spend time with his brother with whom he will reside in South Australia.  The applicant said he will support his brother with accommodation, food, travel and such like expenses. The Tribunal has considered the financial information provided by the review applicant in this regard (including payment advice payslips) and accepts from his work as a Storeman with JBS in Bordertown, SA that he has the financial means to provide such support. At the time of the hearing, there was ING bank account evidence before the Tribunal of savings in the order of $9,338 as at the balance held on 2 August 2019 that could be used towards the visa applicant’s stay in addition to funds held by the visa applicant himself.

14. The Tribunal accepts that the visa applicant has independent financial means from his work as a registered medical practitioner (discussed further below) in Nigeria and has sufficient savings to draw from if required, for the duration of his proposed visit in Australia. A letter from his employer, Barka Clinic and Maternity located in Adamawa State, Nigeria dated 16 January 2019 records monthly remuneration of N3000,000 Naira for the visa applicant for his work as a medical practitioner.

15. The Tribunal places weight on the stated purpose of the visit (visiting a close relative) and also to undertake the medical qualification examinations during the proposed visit and accepts that the visa applicant will be substantially occupied with this during his visit given the focus on successfully completing this medical qualification examination. Accordingly, weighing these factors together with the declaration made in the application committing to not undertaking work during the period of the visit, the Tribunal finds that the visa applicant intends to comply with condition 8101 to which the Subclass 600 visa would be subject.  This weighs in favour of granting the visa.

16. Condition 8201 – must not engage in study or training in Australia for more than 3 months. The accepted evidence provided to the Tribunal is that the visa applicant will prepare for the AMC CAT MCQ medical qualification assessment over a period of 2 to 3 months prior to coming to Australia to undertake the examination.  A letter dated 3 January 2020 from Australian Medical Council Limited shows that the visa applicant has paid for and secured a placement for the AMC CAT MCQ examination in 2020 and has been provided with an individual AMC Candidate number for the examination which will be held over a duration of 3.5 hours. There is no evidence to support that the visa applicant will engage in study or training in Australia for more than 3 months. The Tribunal notes the proposed visit is for up to 3 months in any case. 

17. Having had regard also to the relevant declarations made in the application, the Tribunal finds from the above evidence considered collectively, that the visa applicant intends to comply with this condition 8201 to which the Subclass 600 visa would be subject.  This weighs in favour of granting the visa.

18. Condition 8503 - not entitled to a substantive visa, other than a protection visa, while remaining in Australia. There is no evidence before the Tribunal to suggest that the visa applicant will have difficulty in returning to Nigeria after his proposed stay in Australia. The evidence before the Tribunal is that the visa applicant has received a government State Honours Award and been issued with a letter of recommendation dated 17 October 2018 by the Ministry of Health, Kogi State, Government of Nigeria, commending his contributions for medical services provided to the community of Gegu-beki in “reducing Maternal and Newborn deaths in his place of primary assignment”. The letter states that he is “the only resident medical doctor within this host community.”  It is evident from this and the Statutory Declaration of 31 January 2020 and oral evidence presented that the visa applicant’s services in the medical field are valued and sought after in Nigeria and that his return there would be welcomed.

19. The Tribunal also notes that other members of the visa applicant’s family have recently been able to travel outside of Nigeria with no apparent difficulties, noting the visa applicant’s mother was visiting in Australia and returning to Nigeria on 29 February 2020 on a pre-booked flight for that date.  The Tribunal accepts the evidence that there is no reason why the visa applicant could not return to Nigeria at the end of the proposed stay and has raised no reason to fear a return to his home country at the end of the visit.

20. From the above evidence discussed and declarations made, the Tribunal is satisfied that the visa applicant intends to comply with Condition 8503 of the proposed visa.

21. Condition 8531 – must not remain in Australia after end of permitted stay.  There are a number of factors that act as incentives, on balance, for the visa applicant to comply with this condition requiring him to leave Australia at the end of the proposed stay.

22. These include the following:

    ·The applicant is valued for his medical services in his local community and has received recognition by way of a State Honours Award and recommendations by the Nigerian Government for his work.

    ·He is engaged and soon to be married to his long-time girlfriend in Nigeria.

    ·He has other close family (siblings and parents) in Nigeria, a close social network and friends to return to be with.

    ·He has undertaken and completed his one year Military service obligations in Nigeria.

    ·The AMC examination has no centres in Nigeria, or Africa, hence the accepted need for a visa for proposed overseas travel.

    ·There is a strong incentive to comply to avoid difficulties with potential future travel.

    ·He has ongoing employment as a medical practitioner in Nigeria and has been provided with leave to visit Australia and return to his position.

23. The Tribunal considered this latter point together with other relevant matters (cl.600.211(c)) noting that a locum had been employed to fill in for the position in his absence.  At the hearing, the Tribunal raised concerns with the review applicant regarding the bona fides of certain documents provided in support of the application by the visa applicant relating to evidence of employment as a medical practitioner in Nigeria. This included a letter dated 20 January 2020 granting the visa applicant permission for leave from his employment with Barka Clinic and Maternity to come to Australia to undertake the medical qualification assessment, together with other material provided.

24. The documents of particular interest to the Tribunal appeared to have discrepancies between two leave approval letters relating to the visa applicant being dated 7 October 2019 and that dated 20 January 2020. In these documents, the ink stamps of the visa applicant’s supervisor, Medical Director Dr Clement Ayuba, appear digitally identical and the Tribunal raised concerns in accordance with the procedure under s359AA of the Act relating to issues that would be the reason, or part of the reason, for affirming the decision under review. The Tribunal invited comment or response to the matter regarding any potential alterations to reflect a new date from the original, being the document dated 7 October 2019 made to the latter document dated 20 January 2020. In addition, there appeared to be font and spacing inconsistencies in the final sentences of paragraphs one and two of the document dated 20 January 2020 which suggested the 20 January 2020 letter was potentially digitally altered to contain new dates for leave.

25. Further, the signature in the document dated 20 January 2020 appears inconsistent with the same named person’s signature on an earlier appointment letter dated 16 January. This was the subject of a separate submission received by the Tribunal, signed by the same Medical Director.  At the hearing the Tribunal was provided with an explanation to the above discrepancies and this was followed up by further written submissions dated 14 February 2020.  These explained that the Medical Director’s administrative clerk had signed the approval on the Medical Director’s behalf (and authority). The Tribunal was partly persuaded by the explanation but sought additional information from the Department’s POST in Pretoria, South Africa as to whether the visa applicant was genuinely registered as a medical practitioner in Nigeria as stated.  The Tribunal sought confirmation from the Medical and Dental Council of Nigeria that Dr Adetayo Adewunmi ADEOYE is fully registered in that country as a medical practitioner.

26. There was a considerable delay in receiving a response from the Medical and Dental Council of Nigeria explained (and accepted by the Tribunal) on the basis that the POST was closed for some months due to the COVID-19 pandemic.  On 30 September 2020, the Tribunal received confirmation sent via the Integrity Section of the Department of Home Affairs in Pretoria, South Africa as follows:

    … “Our Post has gotten back to us to advise that they received response [30 September 2020 … attached] from Medical and Dental Council of Nigeria.

    According to their records Dr Adetayo Adewunmi ADEOYE is fully registered with the Medical and Dental Council of Nigeria. …”

27. Having now received the aforementioned responses and carefully considering the additional submissions made, the Tribunal accepts that the visa applicant is employed at Barka Clinic and Maternity in Nigeria with the leave granted by the Medical Director as per the letter of 20 January 2020 for the purpose of the visit (as required to be amended). The Tribunal places weight on a finding firstly, that the visa applicant is a registered medical practitioner in Nigeria, and secondly, that he seeks to come to Australia temporarily for the stated purpose of visiting his brother and to undertake the medical qualification assessment as described.

28. This weighs as additional incentive to stay temporarily and return to his work as a medical practitioner in Nigeria at the end of the proposed stay.  Accordingly, together with the relevant declarations made, the Tribunal finds the applicant intends to comply with Condition 8531 and not remain in Australia after the end of permitted stay.

29. 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

30. 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.

    Stavros Georgiadis
    Member