Ali (Migration)

[2022] AATA 2983

Ali (Migration) [2022] AATA 2983 (19 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kaltun Mohamed Ali

VISA APPLICANT:  Mrs Fosiya Abdi Mohamed

REPRESENTATIVE:  Ms Abby Hamdan (MARN: 0401329)

CASE NUMBER:  2202481

HOME AFFAIRS REFERENCE(S):          BCC2021/705421

MEMBER:David Crawshay

DATE:19 July 2022

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 criterion for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 19 July 2022 at 2:44pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – political, security and economic conditions in Somaliland region – family childcare support – providing a security bond – substantial family commitments in Somalia – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 28 January 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 8 December 2021. 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 Sponsored Family 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 was granted.

5. The review applicant appeared before the Tribunal on 19 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The visa applicant is the review applicant’s mother.

6. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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 Sponsored Family stream may be granted: cl.600.231.

10. 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)).

11. There is no evidence to show that the visa applicant has ever held a visa to travel to Australia, and no evidence is accorded either way.

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.600.612):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than three 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. Based on the profile of the visa applicant, the Tribunal is satisfied that she intends to comply with conditions 8101 and 8201 relating to no work and no study or training for more than three months. This evidence is given some weight.

14. Condition 8503 is an entitlement and is not able to be complied with.

15. Condition 8531 is considered below in the context of “other relevant matters”.

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

17. The Tribunal notes that a reason for the visa refusal was the political, security and economic conditions within Somalia. While accepting that Somalia may be experiencing dire economic and security conditions, such that there is an ongoing threat of terrorist attack and kidnapping and dangerous levels of violent crime, the Tribunal considers that a distinction must be made between the country as a whole and the region where the visa applicant is living – Somaliland. Somaliland is a self-declared republic that enjoys a measure of autonomy from the Somali Government. It sits at the top of Somalia and is separated from that part of the country that includes the capital Mogadishu by the other semi-autonomous region of Puntland.

18. A report from “Landinfo”, the Norwegian country of origin information centre, dated 7 April 2020 relevantly states as follows:

    Except for the years 1992 and 1994/1995, when conflict between different clans resulted in civil war-like conditions, the security situation in Somaliland has generally been peaceful and stable. This is illustrated by the fact that there exist travel guides to Somaliland for tourists.

    Consequently, the security situation in Somaliland stands in stark contrast to many other parts of Somalia, which are still characterised by armed power struggles.

    [references omitted][1]

    [1] Landinfo, ‘Somalia: The security situation in northwestern Somalia (Somaliland)’, 7 April 2020 >

    The report went on to state that al-Shabaab had not managed to establish territorial control in Somaliland and had not conducted major attacks there since 2008. It also stated that Islamic State only operated a small group in Puntland “quite distant from the border of Somaliland”.[2]

    [2] Ibid.

19. The Tribunal accepts the veracity of this information and gives it weight. It accepts that the political and security conditions within Somaliland are not a disincentive for the visa applicant to return at the end of any visitor visa period imposed on her.

20. The Tribunal has considered the circumstances of the review applicant in Australia. It has considered that she [has a specified medical condition]. It has considered that she has four children, all aged eight years or under. It has considered that she is claimed by a GP to be suffering from depression and grief and to be “struggling” to cope with caring for her existing children. Lastly, it heard from the review applicant that her husband was currently living away from her in Wodonga on a one-year contract which ends in April 2023. It accepts this evidence.

21. The Tribunal has considered that the review applicant wishes for the visa applicant to come to Australia to help her. It has considered that the review applicant may want to use her mother for support, and therefore to remain here for longer than what she has nominated, given the review applicant’s current mental state and her [medical condition] and [its associated commitments]. The Tribunal considers that this evidence may suggest that the visa applicant will overstay any visitor visa granted to her. This evidence is given weight of an adverse nature.

22. The Tribunal has considered the presence of a prolonged drought in Somalia, including Somaliland.[3] At hearing, it put to the review applicant that this would act as an inducement for the visa applicant to stay in Australia and not return to Somalia. The review applicant replied that the visa applicant has family commitments in Somalia that would need her to return.

    [3] Médecins Sans Frontières, ‘In Somalia and Somaliland, drought is worsening multiple health crises’, 7 June 2022, >

    In this regard, the Tribunal has considered the composition and location of the visa applicant’s family. The consistent evidence of the parties is that the visa applicant lives in Hargeisa with her husband, her mother and five unmarried daughters. It accepts that these claims are true based on the consistency of the testimony of both parties and based on the spontaneity of their answers. It has considered the cultural context of having unmarried daughters stay with the family until they have found a husband. It accepts in this context that the visa applicant has an ongoing role to play in her family until these daughters are married. The Tribunal also accepts that the visa applicant has a husband and mother, the latter of whom she claims to care for.

23. The Tribunal has considered the above evidence and gives it substantial weight. It accepts that the presence of family members in Somalia would act as an incentive for the visa applicant to return at the end of her visa, and would outweigh other factors such as the drought in Somaliland.

24. The Tribunal has finally considered that the visa applicant has applied for a visitor visa in the sponsored family stream which allows the Department to issue a security bond to ensure compliance. At hearing, the Tribunal asked the review applicant what might be an appropriate sum of money to nominate as security, and she replied between $3,000 and $5,000. The Tribunal suggested that this sum might be too small, especially given that she had provided evidence from October 2021 showing $25,000 in one bank account. She said that the amount was currently $16,000, that her husband only cleared $2,000 per fortnight as an audiology intern and that she had not taken as much in-person work.

25. The Tribunal is not satisfied by this evidence. In coming to this finding, it has not seen any recent documentary evidence to substantiate the drop in funds in the review applicant’s bank account, and has not seen any evidence at all about whether her husband has money in his account that might also be able to be contributed towards the security bond. It gives more weight to evidence showing that the review applicant had a significant amount of money in her account as recently as October 2021. It finds that the review applicant and her husband would have capacity to jointly contribute to a bond of more than $10,000 to ensure compliance.

26. The Tribunal has considered and weighed the evidence in front of it, including the above evidence. While it has some concerns about whether the visa applicant may overstay her visa given the review applicant’s obvious need for assistance, it accepts that these concerns are outweighed by evidence that the visa applicant still has family and caring duties – including significantly in respect of five unmarried daughters. It gives this evidence decisive weight.

27. 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

28. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    David Crawshay
    Member