Ajani (Migration)

[2023] AATA 2712

Ajani (Migration) [2023] AATA 2712 (10 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Oluwafunke Joy Ajani

VISA APPLICANT:  Mrs Stella Olufunmilayo Akinlusi

CASE NUMBER:  2214097

HOME AFFAIRS REFERENCE(S):          BCC2022/569164

MEMBER:Naomi Schmitz

DATE:10 August 2023

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 10 August 2023 at 1:48pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – updated financial and property ownership details – visa applicant returning to care for elderly husband – balance of family in Nigeria – security situation in Nigeria – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 2 September 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 March 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.

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 intended to stay temporarily in Australia for the purpose for which the visa is granted.

5. On 22 September 2022, the review applicant applied to the Tribunal for a review of the refusal decision and provided a copy of the delegate’s decision record to the Tribunal.

6. On 21 July 2023, the Tribunal invited the applicant under s 360(1) of the Act to appear at a Tribunal hearing by Microsoft Teams video-link commencing at 9:30 am (VIC time) on 7 August 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

7. In support of the application for review, statements from the review applicant and her husband were provided.

8. The review applicant appeared before the Tribunal on 7 August 2023 by Microsoft Teams video-link to give evidence and present arguments. The visa applicant did not appear. The representative stated that the visa applicant was content for the review applicant to give evidence on her behalf. The Tribunal Member explained to the review applicant that the Tribunal could not assume what evidence the visa applicant would have given as to do so would be speculative. The review applicant indicated she understood. The review applicant was represented in relation to the review by a close family member, namely her husband. The representative attended the Tribunal hearing.

9. During the course of the hearing, it was claimed that the visa applicant owned property and that the review applicant and her husband would financially support the visa applicant during her stay. The Tribunal Member stated that there was no evidence in support. The review applicant requested further time to submit information. The Tribunal Member granted the review applicant until 4:00 pm on 9 August 2023 to file financial information and evidence of property ownership. In response, the review applicant provided various taxation records and pay slips of the review applicant and her husband and certificates of title confirming that the visa applicant’s husband owns four apartments of which the visa applicant has a property interest.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. The visa applicant is a 69-year old citizen of Nigeria who resides in Lagos, Nigeria. In the present case, the visa applicant seeks the visa for the purposes of visiting her daughter, the review applicant who is an Australian citizen. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221; and cl 600.222.

13. At the time of application, the applicant requested a Visitor visa for up to 12 months, with a planned arrival date of 1 May 2022 and a departure date of 27 April 2023. At hearing, the review applicant gave evidence that her mother would stay between three and six months and could not stay longer due to her father, the visa applicant’s husband being almost 87 years of age and needing the visa applicant to care for him. The Tribunal Member asked the review applicant who would care for her father during the visa applicant’s absence. The review applicant confirmed that her brother and sister will stay and care for him. The review applicant confirmed that only her mother would travel to Australia. The review applicant stated that they had applied for 12 months to allow some flexibility in travel arrangements.

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)). In the present case, the visa applicant has not previously travelled to Australia. Consequently, there is no demonstrated compliance or non-compliance with previous visa conditions upon which the Tribunal can use to assess whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

15. 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; and

    ·8201 – must not engage in study or training in Australia for more than 3 months.

16. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201 given she has applied for a Visitor visa for the purposes of visiting family and the short duration of the visit. The Tribunal also accepts that the visa applicant will comply due to her age and being retired. The Tribunal is also satisfied based on financial information referred to in [9] above and the oral evidence of the review applicant that the visa applicant will be accommodated and financially supported by the review applicant and her husband during her stay in Australia. At hearing the review applicant gave evidence that she is employed as a registered nurse and her husband as a civil engineer and that they had financial capacity to financially support the visa applicant.

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

18. Firstly, the Tribunal has considered the purpose of the visit. The review applicant gave evidence that the purpose of the visa applicant’s visit was to spend time with the review applicant, her husband and two grandchildren. She stated that the visa applicant had not seen them since the review applicant and her family visited Nigeria in 2018. The Tribunal accepts this is a valid reason to apply for a visitor visa to Australia.

19. Secondly, the Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside Nigeria. The review applicant confirmed that the visa applicant had not undertaken any international travel and hence, it took much persuasion to get her father to agree to allow her mother to travel alone and that she would return after her stay.

20. Thirdly, the Tribunal has taken into account the incentives to return to Nigeria at the end of the proposed visit. The Tribunal Member asked the review applicant where the visa applicant’s family members reside, including in Australia, Nigeria, and any other country. The review applicant confirmed the only family in Australia were herself, her husband and two daughters aged 12 and 15 years. In contrast, the majority of the visa applicant’s family reside in Nigeria, including the visa applicant’s husband of whom she has been in a relationship with for approximately 50 years and married to for 43 years; the visa applicant’s five children comprising of three daughters and two sons; and five grandchildren. Three of the visa applicant’s children reside in Lagos and two approximately one and a half hours drive from the visa applicant. The visa applicant shares a close relationship with all family members and is the primary carer of her elderly husband who relies on her for care and support. There is no other family who reside abroad.

21. The visa applicant’s husband owns four properties, namely four apartments, one of which the visa applicant and her husband reside in and three which they lease out and derive an income. The review applicant explained that the properties are in her father’s name which is consistent with cultural norms in Nigeria. The rental income is directly deposited into the visa applicant’s husband’s account and is used to financially support the visa applicant and her husband. In support the review applicant provided a certificate of title, property plans and various tenancy agreements which confirm the same and which the Tribunal accepts. The Tribunal Member further accepts the review applicant’s evidence that the property titles and lease agreements are in visa applicant’s husband’s name due to Nigerian cultural norms. Whilst the visa applicant and her husband are both retired, the visa applicant lives an active and comfortable life, keeping herself mentally alert and physically active selling Tupperware, living off the rental income of her and her husband’s three rental apartments and by monies provided by their children.

22. The review applicant confirmed that her mother is Christian.

23. The Tribunal Member explained that as a relevant factor pursuant to cl 600.211(c), that the Tribunal may consider the situation of a visa applicant’s home country, Nigeria, as this may appear to be a disincentive to return. The Tribunal Member referred to country information[1] which describes the security situation in Nigeria as being unstable and threats assessed as high throughout Nigeria. Nigeria continues to suffer from significant security challenges including ongoing ethno-religious tensions between Christian and Muslims that have led to deadly violence across the country. According to the Council on Foreign Relations, Nigeria registered 7,972 deaths related to political, economic and social grievances in 2019.

    [1] Department of Foreign Affairs and Trade Country Information Report Nigeria dated 3 December 2020; and

24. Nigeria also suffers from high crime rates and kidnappings as well as militant groups carrying out terrorist attacks against a range of targets including government and security institutions, oil facilities and infrastructure, the headquarters of international organisations and financial institutions, and transportation facilities. The attacks are indiscriminate and target government interests as well as public places where crowds gather.

25. Whilst most attacks are conducted by Boko Haram or Islamic State West Africa (ISWA) and occur in the North-East, the risk of terrorism has spread across Nigeria and including to the capital city Abuja and surrounding Federal Capital territory areas. This risk increased in 2022, including the risk level in Lagos city. Examples of recent terrorist attacks have included: on 5 July 2022, the Kuje Prison in the federal capital territory which was bombed and attacked by gunmen and an unknown number of prisoners escaped. ISWA claimed responsibility for the attack. On 22 September 2022, a police patrol was attacked by gunmen in Ondo state, and on 23 September 2022, security personnel were attacked by gunmen in Edo state. ISWA claimed responsibility for the attack. The review applicant was asked in light of these security issues and in light of Australia being a much safer country with lower terrorism threats, why this would not act as a disincentive for the visa applicant to return to Nigeria after her proposed visit.

26. The review applicant responded that these security threats and acts of terrorism mostly occurred in the northern parts of Nigeria and ‘hardly happens’ in Lagos. She denied these security challenges would act as a disincentive for the visa applicant to return.

27. The Tribunal has carefully considered all of the evidence. The Tribunal accepts that the visa applicant has a valid reason to visit Australia to see her daughter, the review applicant, son-in-law and two granddaughters. The visa applicant has not travelled to Australia or any other country before and therefore there is no demonstrated history of compliance or non-compliance with previous visa conditions.

28. The Tribunal notes that the visa applicant is almost 70 years of age and has a well-established life and a substantial family network who reside in Nigeria who would act as a strong incentive for her to return, including her husband, five children and five grandchildren. The Tribunal is also satisfied that the visa applicant shares with her husband significant property interests which would act as an inducement to return and provide her with a comfortable lifestyle. The Tribunal is also satisfied that the security issues affecting Nigeria would not serve as a disincentive for her to return, which is consistent with the visa applicant not undertaking any previous travel. Finally, the review applicant presented as a credible and reliable witness which the Tribunal Member placed significant weight on.

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.

    Naomi Schmitz
    Member