Bicotier Ndombasi (Migration)

Bicotier Ndombasi (Migration) [2022] AATA 257 (25 January 2022)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Raymond Bicotier Ndombasi
VISA APPLICANT:  Mrs Jeanine Kinkela Mavungo
REPRESENTATIVE:  Mr David Harvey
CASE NUMBER:  1928462
HOME AFFAIRS REFERENCE(S):          BCC2019/3968879
MEMBER:Mark Bishop
DATE OF DECISION:  25 January 2022
DATE CORRIGENDUM
SIGNED:10 February 2022
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The date of decision on the first page, 25 January 2021 should be replaced with 25 January 2022.
Mark Bishop
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Raymond Bicotier Ndombasi
VISA APPLICANT:  Mrs Jeanine Kinkela Mavungo
CASE NUMBER:  1928462
HOME AFFAIRS REFERENCE(S):          BCC2019/3968879
MEMBER:Mark Bishop
DATE:25 January 2021
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 25 January 2022 at 11:06am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – review applicant and visa applicant are married – visa applicant supporting a disabled brother – supervised guardian control – previous compliant visits to other countries – 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 September 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 10 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.
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.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211.
The Review Applicant (RA) and Visa Applicant (VA) appeared before the Tribunal on 6 December 2021 to give evidence and present arguments.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In the present case, the visa applicant seeks the visa for the purposes of visiting Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
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)).
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
·8101 – must not work in Australia
·8201 – must not engage in study or training in Australia for more than 3 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.
The delegate made the following findings:
Findings
·“On the basis of all the information available to me, including the documents and information the applicant provided, I find that the criteria for the grant of a Visitor (Tourist) visa in the Tourist stream are not satisfied.
Reasons
·I have assessed the application and the reasons for my decision are detailed below.
·An application for a Visitor (Tourist) visa in the Tourist stream has been made by the applicant.
·A visa cannot be granted unless the relevant criteria specified in the Migration Act and the Migration Regulations are satisfied.
·In this case, I am not satisfied that clause 600.211 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:
600.211
·The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a) 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; and
(b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and
(c) any other relevant matter.
·In assessing whether or not the applicant genuinely intends to stay temporarily in Australia, I have taken into account information provided in the application, the applicant's immigration history and compliance with previous visas. I have also taken into consideration any supporting documents as well as the applicant's personal circumstances, commitments, and incentive to return to their country of residence.
My decision is based on the following factors
·In making my decision I have considered all the information on the application and the evidence on file.
·The applicant is a 47 year old married female who claims to be employed and wishes to travel to Australia to visit family.
·The applicant has provided the following evidence to support their claim for a Visitor visa to Australia:
✃ Travel Insurance
✃ Bank statement
✃ Invitation letter
✃ South African residence permit
✃ Employment letter
✃ Payslip
✃ Driver’s License
✃ Lease of Rental Agreement
✃ Passport
Previous Travel
·The applicant has not provided any evidence of any previous travel to a third country.
Assets
·You have not provided any evidence of personal assets which may act as an incentive to return to South Africa at the end of any visa granted to you.
·I also note that you have no family members to remain in South Africa for the period of your stay in Australia. As such I cannot be satisfied as to your intentions in Australia and that you intend a genuine temporary stay in Australia.
·After considering the information provided, I am not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.
·Therefore, I am not satisfied that the applicant meets the relevant criteria in clause 600.211 in Schedule 2 of the Migration Regulations.
Decision
·As clause 600.211 is not satisfied, I find the criteria for the grant of a Visitor (Tourist) visa in the Tourist stream are not satisfied. Therefore, I refuse the application by the applicant for a Visitor (Tourist) visa in the Tourist stream.”
As at 2 July 2019 the VA was employed by INK Correctional Link and had authorised leave from September 2019 until October 2019.
In evidence the RA advised the Tribunal as follows:
·He has been an Australian citizen for 15 years and resident in Australia since 2003. He came to Australia as the holder of a Visitor visa. He currently lives in Melbourne and works as a forklift operator.
·His son lives in Sydney.
·The RA married the VA in Pretoria, South Africa on 3 April 2019. Prior to the marriage the RA had been in a long term relationship with the VA.
·He rents his own home. He does not have any business or commercial assets in Australia.
·The VA left the Congo approximately 7 years after the RA left the Congo. The VA is not a citizen of South Africa. She is a permanent resident of South Africa.
The VA advised the Tribunal as follows:
·She left the Congo in 2009 and went to South Africa for work and worked there from 2010 until 2014. Since 2014 she has been self-employed as an agent and in the retail industry. The VA rents her home in South Africa. She does not hold any assets in South Africa. And does not own any properties in South Africa.
·Her husband and son send her money from Australia on a regular basis and she relies on that money to live in South Africa. She has her own business.
·She has not and will not apply for a Protection visa to come to Australia. She wishes to visit Australia.
·In South Africa she lives with her sister.
The RA was represented by a solicitor Mr David Harvey. He advised the Tribunal the RA would proceed with a 309 Application once the VA had departed Australia and returned to South Africa. He advised the VA had a disabled younger brother in South Africa and the VA provided important help to this person. This person is profoundly and deeply disabled. He advised the RA and his son had plenty of capacity to provide for the VA and did so.
At the conclusion of the hearing the Tribunal requested the solicitor for the applicant provide a further written submission by 31 January 2022. The solicitor agreed to do so.
The solicitor provided the following documentation:
·A Statutory Declaration in the name of the VA addressing the disability of her younger brother in South Africa and her long time care of this man.
·A submission that addressed the fact the VA is the primary care-giver and guardian for her 29 year old brother who suffers from schizophrenia and detail of current treatment, plus undertaking of VA return to South Africa at the conclusion of her visit to Australia to look after her younger brother.
·Copy of Special Psychiatrist report that addressed history, current state and prognosis of a Mr Huguet Ngolo Kango younger brother of the VA. This medical report advised Huguet Ngolo Kango “requires constant supervision by his family. He will remain on treatment for lifetime”.
The Tribunal gives the material summarised in paragraph 18 immediately above considerable weight.
The Tribunal has reviewed all the material on the Departmental and Tribunal files and paid close attention to the evidence of the RA, the VA and the solicitor for the RA.
The VA is married to the RA and she is separated from her family in Australia by choice. This choice is about the need for her younger brother to have supervised guardian control whilst undergoing medical treatment which is likely to be very lengthy. It is no secret that the VA will in the future make application for lawful entry to Australia to join her husband. There is no evidence before the Tribunal suggests the marriage between the RA and the VA is anything but legitimate. The VA has family members in both South Africa and Australia. She is the primary care-giver for her profoundly disabled younger brother. She advises she needs to return to South Africa to continue providing that care. The VA has travelled extensively in the continent of Africa and there is no evidence before the Tribunal that she has not complied with relevant visa conditions at all times.
The Tribunal is satisfied the VA will return to South Africa to attend to family obligations and accordingly the Tribunal is of the view the VA is a Genuine Temporary Entrant to Australia.
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
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
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.
Mark Bishop
Member

[2022] AATA 257

25 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies