Costanzo (Migration)

[2018] AATA 4916

Costanzo (Migration) [2018] AATA 4916 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Beatrice Costanzo

VISA APPLICANT:  Mrs Comfort Nkrumah

CASE NUMBER:  1726411

HOME AFFAIRS REFERENCE(S):           BCC2017/3493521

MEMBER:Mary Urquhart

DATE:26 October 2018

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 26 October 2018 at 2:46pm

CATCHWORDS

MIGRATION –Visitor (Class FA) – Subclass 600 (Visitor) –sponsored family stream – genuine temporary entrant criteria –visit to support sister – no international travel history – twin sister complied with conditions – incentivize to return – stable employment – dependent husband and son – willing to provide a security bond –  decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.231, 600.612

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 27 October 2017 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 24 September 2017. 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 (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 meetcl.600.211, because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet

6. The review applicant appeared before the Tribunal on 26 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Comfort Nkrumah, the visa applicant by telephone from Ghana. The Tribunal hearing was conducted with the assistance of an interpreter in the Twi and English languages.

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)). The applicant has not previously visited Australia and cl.600.211 (a) is accordingly not applicable.

11. 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

    ·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.

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

13. There is no information before the Tribunal to suggest that the visa applicant would engage in any study or training in Australia. Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa condition 8201.

14. The Tribunal considers the likelihood that the visa applicant will comply with the other conditions depends on the strength of her incentives to return to Ghana balanced against the strength of incentives to seek to remain in Australia.

15. The applicant is a 48 year old married woman. She is a national of Ghana. She claims to be self- employed in her own Bar which she has operated for some 13 years. Evidence was given that her husband helps in the bar and that she has recently employed an assistant to help with the Bar.  The applicant has applied to visit for 6 months.

16. The review applicant Ms Beatrice Costanzo, aged 24, is the applicant’s sister. She is married and has two young children.  The review applicant first came to Australia on an orphan relative visa sponsored by her sister Diana Metcalf who had come to Australia on a spouse visa. The review applicant gave evidence that she and another sister Anna Nkrumah were the youngest in the family and their mother who had a stroke was not able to care for them. Their father had passed away. She said the older children in the family stayed in Ghana as they were able to take care of themselves.

17. The evidence is that when the application for the visa applicant to come was made in September 2017 the review applicant was having difficulties as her husband, who is in the Police Force, was injured in a motor bike accident whilst returning home from work on 5 June 2017. As a result the evidence is that Mrs Constanzo struggled to take care of him and her child and invited her sister to visit to help her out for a time. She had one child aged one and a half and wished the applicant to visit for emotional support and help at home.

18. The evidence is that her husband returned to work part-time in January or February 2018 on a part time basis. He still suffers from fatigue. The TAC is still supplementing his income and income insurance is helping with their mortgage.

19. The review applicant has had a second child born in July 2018. She is currently on maternity leave from her work in aged care. She has not seen her sister the visa applicant since she left Ghana some 6 years ago. As well she said her sister has not had a break from her work in Ghana and has not had any opportunity to travel. It would assist if she could visit and combine a holiday with some family support. Other family in Australia include two other sisters. One has three young children and one is studying nursing. The review applicant said they have helped her but do not stay. The applicant confirmed these reasons in her evidence as to why she wishes to visit. The Tribunal accepts the applicant’s reasons for coming to Australia are commensurate with the visa sought.

20. Scant evidence has been provided of financial matters or evidence of earning s from her claimed employment by the applicant. However, the Tribunal is persuaded to accept the applicant has a bar and that she has operated it for some time. It is small and local. The review applicant was not aware it had been named and said it was known as “Comfort’s bar”. The Tribunal is prepared to accept the bar represents a work commitment and activity; and that it will be looked after for her by her husband and an employee if she is granted a visa. The Tribunal finds it indicates a satisfactory tie to her home land and would be an inducement for her to return home.

21. At the hearing the review applicant produced her bank statements indicating she had a current balance in her account of some $23,000. The Tribunal is satisfied that she has the ability to support her sister during any visit. The Tribunal accepts the visa applicant will reside with her sister when she visits Australia, so will not have accommodation expenses here. The Tribunal also accepts that the review applicant has funds to help support the visa applicant during a stay here. The Tribunal therefore accepts the visa applicant has access to adequate funds to support herself during a visit to Australia.

22. The visa applicant has a dependent son and a husband in Ghana. The evidence is that her son has just completed senior High school and wishes to undertake further study. The applicant said he would like in the future to study in Australia. The Tribunal has weighed the evidence of family in Australia against her familial ties in Ghana. The Tribunal accepts the applicant’s son and husband indicate strong ties to Ghana and persuasive reasons that she will return home.

23. The visa applicant has no international travel history, however the Tribunal accepts that with work and family this may not have been possible in the past. The Tribunal notes that one of the applicant’s twin siblings, a sister Evelyn, visited for 6 months in 2010/2011 and returned home in accordance with visa conditions. The Tribunal takes this evidence into account.

24. Both the applicant and review applicant gave evidence that they understand that if the applicant did not return home within the visa period they would lose and also jeopardize any right of future family members to visit.

25. The Tribunal notes and records that the review applicant gave sworn evidence that as her husband is a police officer her and the applicant would not break any laws or breach visa conditions. The Tribunal as well discussed the review applicant’s readiness and willingness to provide a security Bond to guarantee the visa applicant’s return home. The Tribunal considers this additionally would motivate all parties to ensure the visa applicant complies with her visa conditions in Australia.The Tribunal notes that Bond amounts are at the discretion of the Department but would suggest a Bond in the higher order.

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

27. Taking into account all of the evidence before it, the Tribunal is satisfied on balance, that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and that she would comply with all relevant conditions imposed on the visa.

28. Accordingly the Tribunal 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.

    Mary Urquhart
    Member