Adewoye (Migration)

[2021] AATA 231

Adewoye (Migration) [2021] AATA 231 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Dr Adegbola Adewoye

VISA APPLICANT:  Mrs Moninuola Olanike Afolabi

Mrs Ajibike Rachael Adewoye

CASE NUMBER:  1832920

HOME AFFAIRS REFERENCE(S):          BCC2018/3062913

MEMBER:John Longo

DATE:29 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal determines that it does not have jurisdiction to review Mrs Moninuola Olanike Afolabi’s application.

The Tribunal remits the application of Mrs Ajibike Rachael Adewoye 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 29 January 2021 at 3:56pm

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – tourist stream – no provision to combine review applications – no application fee paid for first applicant – no jurisdiction – genuine temporary entrant – incentives to remain or return – second applicant’s husband, other children and small business in home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347(1), 388(7)
Migration Regulations 1994 (Cth), rr 4.10, 4.12, 4.13, Schedule 2, cl 600.211, Schedule 8, condition 8531

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 22 October 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants, Mrs Ajibike Rachael Adewoye and Mrs Moninuola Olanike Afolabi, each applied for the visas on 14 August 2018. 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 visa applicants applied for the visas 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.

4. The delegate refused to grant the visas on the basis that the visa applicants did not meet cl 600.211 because the delegate was not satisfied that, based on their circumstances, they genuinely intended to stay temporarily in Australia.  

5. The review applicant, Dr Adegbola Adewoye, appeared before the Tribunal on 13 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Moninuola Olanike Afolabi, who is the visa applicants’ daughter. Due to circumstances explained below, the Tribunal did not consider Mrs Moninuola Olanike Afolabi’s application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Consideration of Mrs Moninuola Olanike Afolabi’s Application

7. A review application form was lodged with the Tribunal on 8 November 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision of Mrs Moninuola Olanike Afolabi as the application was not made in accordance with the relevant legislation.

8. Pursuant to s 347(1) of the Act and r 4.13 of the Regulations, this application had to be given to the Tribunal within the prescribed period, as specified in s 347(1)(b) and r 4.10, and accompanied by the prescribed fee unless a determination has been made under r 4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r 4.10 of the Regulations and starts when the applicant is notified of the decision.

9. Where the visa applicants made their application offshore in the tourist stream, and the visa applicants were not sponsored, the decision to refuse to grant the visa may be reviewable under s.388(7) of the Act. In the visa applications in this matter before the Tribunal, the review applicant is listed as the Australian relative.

10. Regulation 4.12 sets out the circumstances under which Part 5 review applications may be combined. For decisions reviewable under s 338(7), the Australian relative may combine review applications only in limited circumstances. None of the circumstances which allow for review applications to be combined under r.4.12 are applicable in this application. Therefore, it is not open to the Tribunal to combine the applications.

11. The review applicant stated that he had intended for Mrs Ajibike Rachael Adewoye’s application to be reviewed and Mrs Moninuola Olanike Afolabi as the secondary applicant. As only one fee was paid for the application, and no fee was paid for Mrs Moninuola Olanike Afolabi’s application, The Tribunal has determined that the application for review of Mrs Moninuola Olanike Afolabi’s application is not a valid application therefore it does not have jurisdiction to review the application of Mrs Moninuola Olanike Afolabi.

    Consideration of Mrs Ajibike Rachael Adewoye’s application

12. 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.

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

14. 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)).

15. The review applicant gave oral evidence that the visa applicant had not travelled to, nor applied to travel to Australia in the past. In the circumstances, the Tribunal makes no findings with respect to previous compliance with Australian immigration conditions.

16. 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)):

    Must be imposed

    ·8101 – must not work in Australia.

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

    May be imposed

    ·8501 – The holder must maintain adequate arrangements for health insurance while the holder is in Australia.

    ·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.

17. The Tribunal discussed each of these conditions with the review applicant. The review applicant stated that as his mother was coming to Australia to see him and the family, she was not intending to work or study while in Australia. The review applicant also stated the visa applicant would obtain health insurance if required.

18. The review applicant stated that the visa applicant cannot remain very long in Australia as she is the primary carer, among other carers, for her husband (his father). Consequently, she cannot be away from home very long. The review applicant stated that his mother does some work, running a small grocery store in the property where she resides with her husband.

19. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal notes that the visa applicant stated in their application that she is employed at a grocery store. This was confirmed by the review applicant and Mrs Afolabi. Mrs Afolabi stated that while her mother is retired, she runs a small grocery store which is located on the bottom floor of their property but is predominately caring for her husband. Mrs Afolabi stated that she applied to travel to Australia with her mother because her mother had not travelled before. The visa applicant’s intention, as stated in their application, is to stay in Australia up to three months.

20. The Tribunal notes that apart from the review applicant and his family, the visa applicant’s remaining children, including her husband, live in Nigeria. The review applicant stated that at the time of the application, it was intended that the trip was for the birth of their daughter. The Tribunal notes that the majority of the visa applicant’s children in Nigeria are married. After considering all the evidence before it, on balance, the Tribunal considers that the presence of the visa applicant’s husband and the majority of her children, as well as other extended family, and her business and caring responsibilities form stronger incentives for her to return to Nigeria than the incentive to remain in Australia with her son. Overall, having regard to the specific circumstances of the case, the Tribunal does not share the delegate’s concerns of the visa applicant having a genuine intention to visit Australia temporarily.

21. 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

22. The Tribunal determines that it does not have jurisdiction to review Mrs Moninuola Olanike Afolabi’s application.

23. The Tribunal remits the application of Mrs Ajibike Rachael Adewoye 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.

    John Longo
    Member