Akindoyeni (Migration)

[2021] AATA 3785

Akindoyeni (Migration) [2021] AATA 3785 (23 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Morolawun Abiose Oluwatoyin Akindoyeni

VISA APPLICANT:  Mrs Olufunke Kehinde Akindoyeni

CASE NUMBER:  1930639

HOME AFFAIRS REFERENCE(S):          BCC2019/4164433

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 1:44pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – the visa applicant genuinely intends to stay temporarily in Australia – positive migration history – good international travel history –visiting children – family commitment in home country –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 10 October 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 22 August 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 they were not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 29 October 2019, the review applicant lodged an application with the Tribunal for a review of that decision.  

5. The review applicant appeared before the Tribunal on 15 September 2021 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)).

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. The review applicant gave evidence that since February 2020 she has worked as an Asset Management Engineer for Transdev Sydney. Prior to that, from August 2019 she was a graduate engineer working on Sydney’s light rail project. Her annual income is around $66,000. She has around $2,000 in savings and does not have any debts.

12. The review applicant gave evidence that she lives in a rented three bedroom townhouse with her two younger brothers, both of whom are studying at university and work part-time to support themselves. They all support themselves financially. The visa applicant will stay with the review applicant while she is in Australia and she and her siblings will pay for her food and expenses in Australia although if the visa applicant contributes towards these costs they would be happy. The visa applicant will pay for her own airfares. The review applicant is not sure how much money the visa applicant will bring with her.

13. The review applicant explained that the visa applicant lives alone in Lagos, Nigeria near one of her sisters. The visa applicant has three sisters who live in Nigeria. Prior to the visa applicant’s husband (the review applicant’s father) becoming ill she had a business making traditional vintage cultural clothes but she put that on hold to be his carer until he died in 2019. As her husband’s next-of-kin, the visa applicant inherited a house in Abuja that was the family home, some farmland and a house in Ondo state, all of which she owns in her own name. She also owns a car which she purchased recently. She has some savings and no debts.

14. The review applicant gave evidence that around one year ago the visa applicant started a new farming business on the farmland she inherited from her husband where she has planted various food crops that she will supply to supermarkets and market women once they start yielding. The review applicant explained that the agricultural system is quite lucrative in Nigeria. The farming business has not started producing money yet so the visa applicant’s main income at the moment is a regular allowance she receives from her late father’s estate. The visa applicant used a portion of this allowance to establish the farming business. She also sells medical equipment for diabetics and blood pressure monitors. In addition, she is in the process of establishing a diabetic wellness centre in Lagos. She has organised premises and is developing a clientele. She has been in the United Kingdom since July 2021 visiting her twin sister and doing some courses on counselling people with diabetes. She has been a diabetic for a long time but needed some formal training and certificates to establish her business when she returns to Nigeria. She has a Bachelor’s degree in social sciences and a Master’s degree in criminology. She is not planning to work, study or undertake any training in Australia.

15. The visa applicant gave evidence that she is not in full-time employment because she is in London acquiring the skills she needs to set up a diabetes wellness centre which is very much needed in Lagos. She already has the premises in partnership with a friend and she will train an assistant to help her. She has also established her farm which is a long-term investment and it has not started yielding anything yet. She also sells medical equipment such as diabetes glucometer testing kits and blood pressure kits which she distributes and sells on commission. She also receives income from her late father’s estate. She does not need a lot of money to live on because she only has to support herself. The Covid-19 situation has not affected her work. She will pay for her airfare and living expenses in Australia and she will stay with her children while she is in Australia. She plans to bring around A$4,000 with her. She is not planning to work or study while she is in Australia. She has just been studying and finished her courses and she has had enough.

16. In considering other relevant matters, the Tribunal discussed the proposed length and purpose of the visa applicant’s visit to Australia and her personal circumstances.

17. The review applicant gave evidence that although her father was an Australian citizen and she has three half-siblings who were born in Australia, the visa applicant has never visited Australia. The visa applicant wants to come to Australia to see her children, whom she hasn’t seen since her husband (their father) died and she wants to see some of Australia for herself. She wants to be able to stay for up to six months because they don’t know when they will see one another again because of Covid-19, but the review applicant and her siblings don’t want her to stay for any longer than that. They have been living by themselves for quite a while and don’t want her in their space for too long. There is a relative in Nigeria who assists with the farm and can look after it in the visa applicant’s absence.

18. The Tribunal asked the review applicant about the visa applicant’s application for a Contributory Parent (subclass 143) visa. She explained that in May 2020 the visa applicant applied for a Contributory Parent visa because they didn’t know how long the Tribunal process in respect of her Visitor visa application would take and what the outcome would be, and the Contributory Parent visa would enable the visa applicant to come and go without having to apply for a Visitor visa all the time. The Tribunal put to the review applicant that a Contributory Parent visa would allow the visa applicant to remain permanently in Australia which is inconsistent with the conditions of a Visitor visa and the visa applicant’s claimed intention, and asked whether what she really wants is to stay permanently in Australia. The review applicant acknowledged this apparent inconsistency and explained that the visa applicant was still in mourning when she applied for the Contributory Parent visa and all she really wanted, and still wants, is to be able to visit her children. She has started her life again in Nigeria and is moving forward there. If she gets the Contributory Parent visa it means she can come every Christmas, for example, without having to reapply. She does not want to live in Australia. If she did that she would have to start her life again, look for a job, a house, a car and get accustomed to the culture here. She has not expressed a wish to do that. She wants to re-establish herself in Nigeria so the children can go home and visit and have a comfortable environment.

19. The Tribunal asked the review applicant about the visa applicant’s health. She said the visa applicant has Type II diabetes but she is in pretty good shape and her diabetes is well-controlled. She has access to appropriate medical treatment in Nigeria and has no other health issues. The Tribunal asked the review applicant whether the economic, political or security situation in Nigeria had affected the visa applicant. She said that economically, because the visa applicant is only responsible for supporting herself it is not a problem for her. The political situation does not affect her and she lives in a safe part of Lagos so she has no security issues.

20. The Tribunal asked the review applicant what incentives the visa applicant has to return to Nigeria at the end of her stay in Australia. The review applicant explained that the visa applicant has her farm business to run, which she is very excited and passionate about. She is comfortably off and she is getting her life back together after her mourning period. She wants to stay and run her businesses and establish herself in Nigeria so the whole family is not just in Australia. Her sisters in Nigeria are supportive. She has been in the UK spending time with family there. The review applicant and her siblings were all born in Nigeria, they are used to the culture and the visa applicant wants to create an environment so that when they come to visit her they are comfortable and so is she.

21. The Tribunal asked the review applicant what would happen if the visa applicant came to Australia and then changed her mind and decided she did not want to go back to Nigeria. She responded that the visa applicant has to follow the terms of her visa. If she broke the law she would get caught and would have to face the consequences. It would be inconvenient for the review applicant and her siblings if she stayed. They are students and average people. It would be difficult for them to accommodate her for a long time. They don’t want her to live with them. The thought of coming to Australia to start again is not appealing to her. Even when the review applicant came as a young person it was difficult.

22. The visa applicant stated that she would like to visit Australia for about one month. She has changed her mind about the length of time since she applied for the Visitor visa. At that time, she was grieving and traumatised by her husband’s death and she was alone and all she could think about was sharing the emotions with her children. Now, with the passage of time and the support of her family and friends she has found her skills to help people and she is looking forward to that. She is a Christian and she has had time to think about how she can be useful in this life and she is more focussed. She won’t be in Australia for too long. She wants to come and see her children and encourage them and see Australia because her husband showed her pictures and her children talk about it. Just like now while she is visiting the UK, she is not away from Nigeria for too long and there are people who can look after her properties and businesses during that relatively short time.

23. The Tribunal asked the visa applicant about her application for a Contributory Parent visa and the potential conflict with the temporary stay condition of the Visitor visa. She acknowledged that she understood the tension. She explained that she applied after her Visitor visa was refused and she wanted to do everything she could to see her children legally. She acknowledged that it was an expensive option but if it were granted it would be worth it for her to avoid the hassle of visa denial. She does not want to stay in Australia permanently. She has a new life in Nigeria which she is enjoying very much. She would rather live in Nigeria and her children want to be able to visit Nigeria knowing she is there.

24. The visa applicant gave evidence that her health is good. She has had diabetes for around 20 years and managed it well. She has encouraged others to come to her for guidance and counselling and it gives her joy to be able to help them change their lifestyle. That is why she did the courses and she is setting up her diabetes wellness centre. She has no other medical problems. The Tribunal asked the visa applicant whether the economic, political and security situation in Nigeria had affected her. The visa applicant stated that she lived in a very secure area and felt safe. There was no threat to her personally and she lives in a moderate way. She is not a political threat to anyone and economically, things have not been easy but she only has herself to take care of and she has enough. Otherwise, she would not have been able to do things like travel to the UK to visit with her sister, for example.

25. The Tribunal asked the visa applicant what incentive she has to return to Nigeria at the end of her holiday in Australia, particularly given all her children live in Australia. She explained that the farm is a big investment for her which she can’t afford to abandon. She has invested a great deal of time and emotion into it and it will be good for her economically. She is passionate about her diabetes consultancy and she wants to continue it. She is good at it and it makes life meaningful for her. She has helped a lot of people to manage their diabetes already and people in her community need encouragement to take care of themselves. She feels she is more useful in Nigeria than she would be in Australia. Mentally, emotionally and financially she wants to be independent. She is enjoying what she has achieved so far and wants to continue. Also, she has been in relationship for about one year with someone who lives in Lagos. She just wants the opportunity to visit and she will not abuse that opportunity.

26. Having considered all the evidence, the Tribunal finds the review applicant and the visa applicant to be credible witnesses and accepts their evidence. While the Tribunal considers that the presence of the visa applicant’s three children in Australia is an incentive for her want to stay in Australia, the Tribunal accepts that the visa applicant has established a new life for herself in Nigeria since the death of her husband and that her property, business and financial interests, social and emotional connections and family provide strong incentives for her to return to Nigeria at the end of her permitted stay in Australia. The Tribunal considers that, despite having applied for a Contributory Parent visa that would allow her to remain permanently in Australia, that is not the visa applicant’s intention and she does not intend to use a Visitor visa as a pathway to seek permanent residence in Australia.

27. The Tribunal is satisfied that it is the visa applicant’s intention to visit the review applicant and her siblings 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.

28. 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

29. 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