Asibor (Migration)

[2021] AATA 3782

Asibor (Migration) [2021] AATA 3782 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Goddy Asibor

VISA APPLICANT:  Ms Rosaline Asibor

CASE NUMBER:  1932098

HOME AFFAIRS REFERENCE(S):          BCC2019/3725664

MEMBER:Catherine Carney-Orsborn

DATE:7 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 07 September 2021 at 12:13pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – evidence of financial resources – business registration – interest in property – family commitments in Nigeria – desire for further family visits – decision under review remitted 

LEGISLATION

Migration Act 1958, s 65
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 1 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 27 July 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 the visa applicant did not provide enough evidence supporting that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 31 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant Mr Asibor, the review applicant’s wife, and the visa applicant.

6. The review applicant was represented in relation to the review by his registered migration agent.

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 her brother, the review applicant, in Sydney. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

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. The applicant provided, as part of her visa application, a copy of a previously held visa for South Africa with multiple entries with an expiry date of 5 May 2019.

12. Prior to the hearing, submissions and documentary evidence was provided to the Tribunal.  The evidence included bank statements, financial documents, marriage certificate, photos of the family in Nigeria and documents evidencing property in Nigeria and business of visa applicant.

13. The Tribunal took oral evidence from the applicants.  A summary of the evidence is as follows.

14. The Tribunal questioned the applicants separately from each other.  The Tribunal asked each of the applicants the names of their parents, date of parents’ birth and other circumstances.  Their evidence corroborated each other.  The Tribunal is satisfied that the review applicant and visa applicant are siblings.

15. The evidence given at hearing corroborated evidence on the application for a visa held on the Department file.  The visa applicant has three children in Nigeria.  She has two biological children and one stepson.  Her husband and her run a café style food business.  The Tribunal is satisfied that the visa applicant is running a small food enterprise where she cooks food and sells other refreshments to the public.  Her evidence is that her husband assists her with the business.

16. The review applicants appeared to give truthful evidence.  They agreed that there were some security concerns in relation to crime and kidnapping in Nigeria.  Their evidence is that the review applicants would find it difficult to visit their family in Nigeria as they could be targeted by criminals they now live in Australia and are seen as having financial resources.  They therefore want the visa applicant to visit them in Australia.

17. The visa applicant agreed there is crime and one has to be careful however she is running a business, has her children and husband and many extended family around her.  She claims she is not at any risk as she is a local and criminals would not be targeting her.

18. The review applicant’s evidence is that he has not been able to visit Nigeria for some time.  He would like his sister to come to Australia for a visit as she looked after their mother until their mother died.  His evidence is that his sister is very hard working and he would like to give her a holiday and rest in Australia.

19. The review applicant and his wife gave evidence that they have always complied with all the conditions on any visa.  His wife works as a nurse and he is a truck driver.  They understand that if there was any noncompliance with her visa it would affect the review applicant’s good record with immigration.  They understood it would make it difficult for any other of their siblings to ever visit them in Australia.

20. 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.

21. The Tribunal has considered the visa applicant’s personal circumstances in Nigeria including her age.  The Tribunal is satisfied that the visa applicant would comply with any conditions.  She has some funds in her bank account and her brother and sister in law in Australia both have jobs and intend to cover any costs she may have.  The purpose of her visit is to spend time together.

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

23. The Department found that the visa applicant did not provide enough evidence of financial means to support herself during her intended three month stay in Australia. The Tribunal is satisfied, on the evidence provided, that she has the financial means to support herself in any visit to Australia.

24. The visa applicant stated in her visa application that she wished to travel to Australia from 9 January 2020 to 9 April 2020.   The visa applicant continues to want to visit her brother and sister in law in Australia.

25. The visa applicant stated in her visa application that she is a restaurant trader. However, she did not provide the Department with evidence of self-employment in the form of either business licences, business registration, or business operation documentation.

26. Prior to the hearing the visa applicant provided a copy of a business registration.  The visa applicant gave honest evidence that she only applied for the business registration after the Department’s decision and at the request of the review applicant.  She was honest that she only ran a small outside café, take away business, and she felt she did not need to register the business.  The Tribunal is satisfied that the visa applicant makes a living via her small café/food business which she runs with her husband in Nigeria.

27. The visa applicant provided the Department with copies of a bank transactions statement for the period January to July 2019.  The applicant provided further bank statements to the Tribunal.  The visa applicant provided evidence that she has travelled to South Africa and returned to Nigeria.

28. The visa applicant also provided the Department with copies of the review applicant’s bank statement for the period of May to July 2019, and a letter from the review applicant addressed to the Australian High Commission in South Africa stating that he intended to take care of the visa applicant’s accommodation and expenses during her stay in Australia.  The review applicant and his wife are both working, have no children, and are receiving adequate funds to support the visa applicant in any visit to Australia.

29. The Department found that the visa applicant had not established how she is related to the review applicant. The applicant stated that the review applicant is her brother.  The visa applicant was able to give personal information about her parents which corroborated the evidence provided by the review applicant.  The Tribunal is satisfied they are siblings.

30. The visa applicant provided to the Tribunal evidence of having an interest in property in Nigeria.  She has a husband and three children in Nigeria.  The review applicant and visa applicant presented as credible witnesses.  The Tribunal after weighing up the evidence provided is satisfied that the visa applicant has a genuine intention to visa her brother and then return to Nigeria.

31. Both the review applicant and his wife understood that if the visa applicant did not comply with her visa conditions or overstayed, they would have difficulty in sponsoring other members of their family to visit them in Australia.

32. 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

33. 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.

    Catherine Carney-Orsborn
    Member