Bogale (Migration)

[2020] AATA 5781

Bogale (Migration) [2020] AATA 5781 (7 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nitsuh Mulugeta Bogale

VISA APPLICANT:  Mrs ALMAZ YOSEF YIMER

CASE NUMBER:  1913625

HOME AFFAIRS REFERENCE(S):          BCC2019/2460022

MEMBER:Melissa McAdam

DATE:7 October 2020

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 October 2020 at 8:56am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – good international travel history – no particular motivation to live outside of Ethiopia – genuine temporary stay criterion–decision under review remitted

LEGISLATION

Migration Act 1958, s 65, 360

Migration Regulations 1994, Schedule 2, cl 600.211

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 Immigration on 29 May 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 9 May 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 (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.

   Visa application

4. The visa applicant provided the following information in her visa application:

   a.She is a 71 year old citizen of Ethiopia.

   b.She wants to visit Australia because her daughter has health issues related to an ovarian cyst which needs to be treated or needs an operation. The visa applicant can assist her daughter.  She needs to be with her daughter and her family for up to six months, from 25 June to 10 December 2019.

   c.She is widowed and lives in Meneharia Kifle Ketema in Awassa province.

   d.She has four sons and three daughters and two grandchildren who will not accompany her on her visit.

   e.She is a housewife and looks after her family.

   f.She receives rental income in Ethiopia.

   g.She will be supported by her daughter, the review applicant, and her husband who live in Australia.

   h.She provided copies of the following documents with her visa application:

   -The review applicant’s husband’s Pay Advices from NSW Roads and Transport;

   -The review applicant’s husband’s Bank Account statement;

   -The review applicant’s Australian citizenship Certificate.

   -The visa applicant’s Bank Account statement.

   -A letter from the review applicant asking for a Visitor visa for her mother.  She states that she has health issues and needs an operation so would like her mother here to assist her.  Her mother lost her husband in 2018.  The review applicant and her husband are Australian citizens. They will provide her mother with accommodation and support her financially during her stay.  Her mother has three young children (a son, grandson, and granddaughter) who she looks after and lives with as well as other relatives she supports. Her mother owns two houses.  Her mother will return to Ethiopia when her visit to Australia is complete.

   -The review applicant’s Australian passport.

   -A letter from Mt Druitt Hospital regarding the review applicant’s surgery.

   -A letter from the review applicant’s doctor.

   -The review applicant’s husband’s Australian Citizenship Certificate.

   -The visa applicant’s Ethiopian passport.

   -The review applicant’s Marriage Certificate.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because of the economic and environmental factors in  Ethiopia; the visa applicant’s personal and economic circumstances; her international travel and immigration history and how these may induce the visa applicant not to return; as well as factors in Australia and how they may act as an incentive for the applicant not to depart Australia.

   Information to the Tribunal

6. On 25 September 2020 the review applicant provided the following written information to the Tribunal:

   -A letter in which she states that her mother, the visa applicant, applied to travel to the USA to visit her son and grandchildren there.  She was granted a two-year visa to the USA. She travelled there for six months from 6 March 2020 to 8 September 2020.  She has now returned to Ethiopia.

   -A copy of the visa applicant’s passport showing a USA visa stamp bearing her name and photograph, issued on 8 January 2020. The passport also shows an exit stamp from Ethiopia in March 2020.

   -The applicant’s boarding pass for her return flight from Newark, USA, to Addis Ababa, Ethiopia, on 8 September 2020.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   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 daughter and daughter’s family in Australia. 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 visa applicant has not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by her.

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 3 months

13. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The Tribunal accepts that the visa applicant has access to sufficient funds to support herself during a visit to Australia. There is no indication before the Tribunal that the visa applicant intends or needs to work while in Australia.  In these circumstances the Tribunal is satisfied she intends to comply with condition 8101.

14. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

15. The Tribunal accepts that the visa applicant is a widowed woman from Ethiopia. The Tribunal accepts that a son of the visa applicant and two grandchildren also reside in Ethiopia.  The Tribunal considers that the presence of the visa applicant’s son and grandchildren represent significant incentive for her to return to Ethiopia after a short stay in Australia.

16. The Tribunal notes the visa applicant recently travelled to the USA, where another son lives, and has returned to Ethiopia. The Tribunal gives this good international travel history substantial weight in the visa applicant’s favour.

17. The Tribunal gives weight to the review applicant’s good immigration history. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to her family and relatives’ immigration compliance in Australia, so that she can sponsor them to visit Australia in the future.  The Tribunal considers this further motivation for her to ensure her mother does not breach any of her visa conditions and departs Australia before the expiry of her visa. 

18. The applicants have provided persuasive information which supports a finding that the visa applicant has a settled and fulfilled life in Ethiopia and that she has no particular motivation to live outside of Ethiopia.

19. In sum, the weight of the evidence before the Tribunal indicates the visa applicant wishes to visit her daughter in Australia, support her daughter, and then return to Ethiopia.

20. The Tribunal is therefore 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

21. 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.

    Melissa McAdam
    Member