Edosomwan (Migration)

[2020] AATA 5231

Edosomwan (Migration) [2020] AATA 5231 (2 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Osazuwa Owusoye Edosomwan

VISA APPLICANT:  Ms Awoiyikilema Hutchinson Bob-Manuel

CASE NUMBER:  1819588

HOME AFFAIRS REFERENCE(S):          CLF2018/178702

MEMBER:John Longo

DATE:2 December 2020

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 02 December 2020 at 10:34am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – previous compliant travel to Australia and other countries – intention to comply with conditions – family and financial interests in home country – credible evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, 600.221

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 28 June 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958.

2. The visa applicant, Ms Awoiyikilema Hutchinson Bob-Manuel, applied for the visa on 7 May 2018. 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not intend a genuine temporary visit to Australia and that there was not sufficient incentive for the visa applicant to return to her home country at the end of her proposed period of stay or to abide by the visa conditions.

5. The review applicant appeared before the Tribunal on 24 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Ms Bob-Manuel and Ms Renee Edosomwan, the review applicant’s wife.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting her son, her daughter-in-law. This will include seeing and spending time with her grandchildren, which she has not met. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221.

9. 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)).

10. The Tribunal notes that the visa applicant has been granted a number of visitor visas since 2013, the most recent visitor visa was granted on 4 August 2016 which allowed multiple entries into Australia. The Tribunal notes that the visa applicant visited Australia on 27 September 2016 and subsequently departed on 19 March 2017 and then visited again, under the same visa, on 26 September 2017 and departed on 21 March 2018. The Tribunal notes that the visa applicant was issued with visitor visas on 15 October 2013 and 9 November 2015 for a three-month and six-month stay respectively.

11. The applicant also stated in their oral evidence that the visa applicant has previously travelled to Australia on a number of occasions and has always complied with the visa requirements. The visa applicant also stated to the Tribunal that she has always complied with visa conditions in the past and has always returned to Nigeria when required. The applicant also stated that the visa applicant has previously travelled and studied in Europe, in Bulgaria when younger, and has always complied with any visa conditions. There is no indication in the Departmental information provided to the Tribunal that the visa applicant has been non-compliant and the Tribunal is satisfied that the visa applicant has complied in the past, in particular with the last substantive visa granted on 4 August 2016.

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 will be subject to 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

13. The Tribunal discussed each of these mandatory conditions with both the review applicant and the visa applicant. The review applicant told the Tribunal that he believed that the visa applicant would comply with all these conditions as she has in past visits and has never wanted to work or study in Australia. The visa applicant stated that she has no intention to work or study and is only intending to visit her son and help with the grandchildren as is her duty as their grandmother. The Tribunal found the review applicant and visa applicant to be credible, so the Tribunal accepts their oral evidence. This evidence weighs in favour of the visa applicant having a genuine intention to visit Australia temporarily.

14. The Tribunal has also considered all other relevant matters (cl.600.211(c) and whether the visa applicant has adequate means to support themselves or access to this support (cl.600.212). The applicant stated that his mother has considerably more family in Nigeria than Australia, which includes her siblings – brothers and sisters – and also a daughter and grandchild. In addition, his mother is retired and has income from rental properties and a business she runs. The Tribunal also notes that the review applicant provided bank account statements from the visa applicant which show regular deposits into this account. The review applicant also stated that as she will be living with him and his wife, they will meet her expenses such as accommodation and food. He stated that he believed that the visa applicant has more reason to return to Nigeria, due to these reasons, than remain in Australia. The review applicant stated that his mother is a law abiding person and would not want to break the law as it is not in her nature to do so and also, as they have applied for a permanent visa which is yet to be determined, they do not want to jeopardise the possibility of being granted this visa by breaching any conditions of a visitor visa.

15. The visa applicant told the Tribunal that she had worked for 22 years in a bottling company in Nigeria, which manufactured soft drinks, and so has been able to consult after her retirement in supplying material for other businesses. This business, together with the rental properties she owns, means she has sufficient means for self-support. She also stated that she has brothers and sisters who live nearby, and she is the head of the family, they meet and speak very regularly. The Tribunal accepts the evidence of the review applicant and the visa applicant and has decided that this evidence weighs in favour of the visa applicant having a genuine intention to visit Australia temporarily.

16. 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

17. 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.

    John Longo
    Member