Adewuyi (Migration)

[2021] AATA 4008

Adewuyi (Migration) [2021] AATA 4008 (23 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr David Adeshina Adewuyi

VISA APPLICANT:  Mrs Olufunmilayo Adewuyi

CASE NUMBER:  1921741

HOME AFFAIRS REFERENCE(S):          BCC2019/1468204

MEMBER:Rachel Da Costa

DATE:23 September 2021

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 23 September 2021 at 10:14am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visit son and daughter-in-law – the visa applicant genuinely intends to stay temporarily in Australia– close family and business ties to home country –– strong incentives to depart Australia – credible witness –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

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 31 May 2019 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 23 March 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 (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 she was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 7 August 2019, the review applicant applied to the Tribunal for a review of that decision.

5. The review applicant appeared before the Tribunal on 13 September 2021 to give evidence to give evidence and present arguments via Microsoft Teams video. The Tribunal also received oral evidence from the visa applicant via telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 is the review applicant’s mother. She 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.

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)). There is no evidence before the Tribunal to indicate that the visa applicant has previously visited Australia.

10. 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.

11. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for her visit to Australia. The review applicant gave evidence that he is a Senior Scientist, Special Projects with the NSW Department of Planning, Industry and Environment where he has been working since November 2019. His current annual income is $111,000. His wife has worked as a client service officer for MLC Wealth (previously IOOF Australia) since 2017 and has an annual income of $65,000. She is currently on maternity leave and will be returning to work in January 2022. They own their own home and have around $50,000 in savings. Other than their mortgage they have no debts.

12. The review applicant gave evidence that he, his wife and two daughters live in their home which is a freestanding house with four bedrooms. They have no other family in Australia. The visa applicant will reside with them while she is in Australia and they will pay for her food and expenses in Australia. The review applicant will pay for the visa applicant’s airfare. He is not sure how much money she will bring with her.   

13. The review applicant gave evidence that the visa applicant is a director of Breakthrough Television Services Ltd which is the television business founded by the review applicant’s father (the visa applicant’s husband) in Nigeria and since his father passed away in 2017 she has been involved in running the business along with the review applicant’s elder brother. The visa applicant is involved in the financial and strategic aspects of the business. About one year ago she also started a food business where she sells frozen seafood to customers. She receives income from the television business and her food business and she has some savings which includes the proceeds from the sale of a property that her husband owned. The review applicant provided copies of the visa applicant’s recent bank transaction statements in support of this. She has some savings and owns two properties in her own right, as well as a car. She owns a house in Akintola village on Oyo state which she rents out and she owns the family home in Lagos which she inherited from her husband as his next-of-kin. She lives in the family home in Lagos with her two sons and her 14 year-old granddaughter (the elder daughter of the visa applicant’s sister who lives in another part of Nigeria), for whom she has day-to-day caring responsibilities and pays her school fees. She is not planning to work, study or undertake any training in Australia.

14. The visa applicant gave evidence that since her husband passed away in 2017, she and her eldest son manage the television business. She is involved in overseeing day-to-day activities of the business, finances and directing the assets. The Tribunal considers that she spoke about her responsibilities with fluency and knowledge. She also has her own business selling frozen food. She receives income from the television business and her food business which is adequate to meet her living expenses. The review applicant will pay for her airfare and meet her living expenses in Australia but if he can’t afford the airfare she will pay for it. She doesn’t know how much money she will bring with her but she doesn’t need to bring too much. She will stay with the review applicant when she visits Australia. She is not planning to work, study or undertake any training in Australia.

15. In considering other relevant matters, the Tribunal also discussed the proposed length and purpose of her visit to Australia and her personal circumstances. In her application for a visitor visa, she stated that her proposed period of stay was up to 6 months, from 1 June 2019 to 1 December 2019. The reason for the visit was a family visit.

16. The review applicant gave evidence that his wife had recently given birth to their second child and the visa applicant had not met her grandchildren yet and he wants her to meet them. He explained that it is customary in their culture for grandmothers to help care for the children when they are very young and to bless them. He would like his mother to come and visit, to help his wife while she is on maternity leave and to give her a break from Nigeria for a bit. He explained that his mother-in-law came for a 5 month visit in 2018 from Nigeria when their first child was born, to visit the grandchild and assist them and she left at the end of her visa. Departmental movement records obtained by the Tribunal confirm that this is correct. The Tribunal discussed with the review applicant what would happen once his wife went back to work at the end of her maternity leave. He responded that his mother-in-law came to visit when his wife was on maternity leave the first time and then she left, his wife went back to work and their child went into child care. They would do the same thing this time with their children when the visa applicant returns to Nigeria. 

17. The Tribunal asked how the visa applicant would be able to leave her work and family commitments in Nigeria for the proposed period of her stay. He explained that they had arranged for his older sister who normally lives in Abuja, Nigeria, to come and stay in Lagos to look after her daughter (who lives with the visa applicant) and to help with the television business as she is already familiar with it, and the visa applicant will hire help to look after the frozen food business for that period.

18. The Tribunal asked the review applicant how the economic, security and political situation in Nigeria had affected the visa applicant. The review applicant mentioned the devaluation of the Nigerian currency and explained that it was not an issue for the visa applicant because the currency is still valuable in Nigeria which is where she plans to stay. He said the security and political situation had not affected her. He gave evidence that the television business is doing well enough, the food business is a good area to be in, she just bought a new car recently and she is doing well. She just wants to come to Australia to visit.

19. The Tribunal asked the review applicant what incentives the visa applicant has to return to Nigeria at the end of her trip to Australia. He responded that she has her whole life there. She has family, businesses and her church which she holds dearly. Her in-laws are in Nigeria and she is friends with them. She had friends and family and all of that to go back to. He said she has no incentive to stay in Australia other than the fact that he and his wife and children live here. She can’t work in Australia. It’s not on the cards. When asked what would happen if the visa applicant comes here, changes her mind and decides not to go back to Nigeria, he responded that she is very family-oriented and would not leave the whole extended family behind. She is also very business-minded and would not leave her businesses or her church. She would not stay beyond the expiration of her visa. The intention is for her to visit, like the review applicant’s mother-in-law did, and then to return to Nigeria.

20. The visa applicant gave evidence that she wants to come to Australia to see her grandchildren and son and daughter-in-law, whom she has not seen for four years since just after her husband died. Their maternal grandmother came to visit and now she wants to come. She doesn’t want to, and can’t, stay longer than three months because she wants her daughter, who will come and stay at her place while she is away, to be able to return to her husband on time. She can continue some, but not all, of her business responsibilities online while she is away.

21. The Tribunal asked the visa applicant how the security, economic and political situation in Nigeria had affected her. She responded that inflation means that prices have gone up but they are coping. She said the political situation had not affected her. She takes her Christian religion very seriously. She doesn’t do politics.

22. The Tribunal asked the visa applicant what incentive she has to return to Nigeria at the end of her visit to Australia. She responded that she has to return to her business and the people there, the brothers and sisters in her church, and her family. She is going back to live there and doesn’t have any other option. She just needs to see her children and spend some time with them and then come back. She does not have the intention to stay in Australia. Her visa cannot expire before she comes back. Australia is far away and she cannot stay and she does not have any reason to stay. The Tribunal asked the visa applicant what would happen if she came to Australia and then changed her mind and decided not to go back to Nigeria. She responded that nothing would make her change her mind. She just wants to see her children like a vacation and to touch her grandchildren and she will come back to Nigeria.

23. Having considered all the evidence, the Tribunal finds the review applicant and the visa applicant to be credible witnesses and accepts their evidence. The Tribunal accepts that the presence of the visa applicant’s extended family in Nigeria, her businesses and her assets, her caring responsibilities and her church and social connections provide strong incentives for her to return to Nigeria at the end of her permitted stay in Australia. The Tribunal is satisfied that she is well-settled in Nigeria and it is not her intention to come to Australia for the purpose of seeking permanent residence. The Tribunal also places some weight on the review applicant’s explanation that his mother-in-law undertook a similar trip for a similar stated purpose and complied with her visa conditions, returning to Nigeria at the end of her stay.

24. The Tribunal is satisfied that it is the visa applicant’s intention to visit the review applicant and his wife and children in Australia and that she will not remain in Australia after the end of her permitted stay. The Tribunal is satisfied that she will comply with her visa conditions.

25. 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

26. 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.

    Rachel Da Costa
    Member