Eze (Migration)

[2018] AATA 4827

Eze (Migration) [2018] AATA 4827 (9 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Emmanuel Ikenna Eze

VISA APPLICANT:  Miss Roseline Chinelo Eze

CASE NUMBER:  1727154

HOME AFFAIRS REFERENCE(S):           BCC2017/3450905

MEMBER:Nathan Goetz

DATE:9 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 09 October 2018 at 1:09pm

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – sponsored family stream – plan to visit brother – abide by visa conditions – no past travel to Australia – willing to arrange a security bond –  incentives to remain in Australia – poor economic situation – lack of property ties – no dependents – other siblings live independently – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.231, 600.612

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 17 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 21 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 meet cl.600.211 because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia.

5. The review applicant lodged the review application on 4 November 2017 and included the decision record of the delegate. The review applicant appeared before the Tribunal on 9 October 2018 to give evidence and present arguments. The Tribunal also received some oral evidence from the visa applicant from Nigeria by telephone, but was confronted with very poor telephone lines which resulted in the majority of the evidence coming from the review applicant and consideration of the supporting documents provided to the Tribunal.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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.

   Background

8. According to the visa application form, the visa applicant is Roseline Chinelo EZE who was born on [date] in Enugu, which is the capital of the Enugu State in Nigeria. She is a Nigerian citizen. She lives at [address deleted] with her mother and father.

9. She has a fiancé, Udensi Iheke Friday who was born on [date] and he lives at [address] Enugu, in Nigeria. A copy of the wedding invitation of the visa applicant to her fiancé on 26 May 2018 at Umuobuna Ubura in Ebonyi State, Nigeria was provided with the application.

10. In Nigeria are her mother and father, as well as two brothers and two sisters. Her third brother is the review applicant. The review applicant lives at [address] NSW which is rented accommodation.

11. She ticked ‘no’ to the health related questions (26 to 32) and ‘no’ to the character details.

12. She is employed at Jean mark Global Resources Ltd at 33 Otary Road, Beside Old Palace, Auchi, Edo State and was employed there as a sales and supply officer for 1 year and 4 months at the time of her application. At the time of her application, she included a letter from her employer which granted her leave for her proposed trip to Australia for the period of 27 October 2017 to 22 December 2017. Prior to her employment, she had served in the National Service Youth Corps from 5 May 2015 to 4 May 2016 and she attached a Certificate of National Service to confirm this.

13. She declared that she wll maintain herself financially while in Australia with her brother and his family and that she will be coming with some money for her own personal upkeep and that her accommodation is sorted. She wrote that the amount coming with her wll be enough for her until she goes back to Nigeria and she attached her bank statement to her application which showed a closing balance of 42016.905.09 as at 12 September 2017.

14. She has never been in Australia and not complied with visa conditions or departed outside her authorised period of stay and and has never had an application for entry to Australia refused. She attached her passport which disclosed no travel outside of Nigeria, as well as other documentation to confirm her identity. The application stated that the review applicant helped her complete the form.

15. According to the application form, the family sponsor is Emmanuel Ikenna EZE who was born on [date] in Enugu in Nigeria. He is the brother of the visa applicant and had Australian citizenship conferred on him on 18 April 2017 following a period of time on a spouse visa. Since 4 June 2011, he has been married to Belinda EZE and is the father of three young children. He wrote that he would arrange a security bond if requested to do so as part of the application.

16. Both he and his wife work and are in receipt of a regular income. His wife works for the NSW Department of Education as a teacher, and he is employed at Campbells Wholesale Pty Ltd in St Mary NSW as a store manager. At the time of the application, he was employed at that business for 2 years and 8 months works at Campbells Cash and Carry. Payslips were provided in support of both the review applicant and his wife’s employment, as was a bank account which showed substantial savings on behalf of the review applicant and his wife. The review applicant and his wife had attached a letter to state that during the visit, he and his wife will be providing his sister with accommodation support and some financial support. Also provided was a Population Commission of Nigeria letter confirming review applicant’s birth, driver licence of review applicant submitted, Optus utility bill in the name of the review applicant

17. Additional documents were lodged with the Tribunal for the purpose of the review. These included an updated letter from Belinda EZE disclosing family travel to Nigeria and updated bank balances for the visa applicant, an updated copy of the visa applicant’s passport and updated payslips concerning the visa applicant’s employment. There was also a medical report concerning the applicant’s mother, as well as a letter from Rev Anthony Richardson (who is the review applicant’s father-in-law) dated1 October 2018 stating that he had ‘no reason to doubt what he (the review applicant) says about sister’s desired visit to Australia to be true’.

    Purpose of visit

18. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

19. In the visitor visa application, the visa applicant stated that the reason for the family visit was because none of the review applicant’s family had ever met his wife or his children due to the distance involved in travel. The visa applicant wrote that she was really looking forward to meeting them.

20. At the hearing, the review applicant advised the Tribunal that since the visitor visa application was refused by the department, the visa applicant had met his family during a visit to Nigeria .He, his wife, and three children had travelled there between December 2017 and January 2018. The Tribunal asked the review applicant why the visa applicant would want to now come to Australia because the purpose of her visit had been achieved when he took his family to Nigeria. The review applicant told the Tribunal that although this had occurred, none of his family in Nigeria had met his wife’s family (as he had been married in Australia and none of his family had attended his wedding) and the review applicant wanted at least one of his family members to see his wife’s family.

21. Additionally, the updated statement which was provided by Belinda EZE read that she would like the visa applicant to come and visit the family in Australia so the visa applicant could be taken to see places like the Opera House and the Blue Mountains, with perhaps a trip to Melbourne to visit some of Belinda EZE’s family who live there. While that purpose of the visit has changed in terms of specifics since the initial application, the Tribunal is satisfied that the purpose has remained a family visit.

    Compliance with past conditions

22. 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)).

23. Since the initial visitor visa application, the visa applicant has travelled to the Republic of Benin, which is a country to the west of the Republic of Nigeria. She undertook this travel in March 2018 and it was related to her employment. Her updated passport was endorsed accordingly. Apart from that travel, the visa applicant has not travelled outside of Nigeria. There is no evidence before the Tribunal that the visa applicant did not comply with any conditions (if any were imposed) as part of her travel to Benin, although the Tribunal notes that as both Nigeria and Benin are members of the Economic Community of West African States (ECOWAS) which allow Nigerians with either a Nigerian passport or a ECOWAS Travel Certificate to freely enter any of the fourteen member states[1], and it may be that no conditions are imposed as part of this travel.

    [1] DFAT Country Information Report – Nigeria, 9 March 2018 at 5.26

24. In any event, travel to Benin is quite different to travel to Australia or a country comparable to Australia. Accordingly, the Tribunal gives no weight the visa applicant’s past travel to Benin when assessing her past immigration history. As there is no past travel to Australia by the visa applicant, the Tribunal cannot accord any weight to compliance with past travel conditions when assessing whether the visa applicant is a genuine temporary entrant to Australia.

    Compliance with proposed conditions

25. 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.

26. The review applicant told the Tribunal that the visa applicant wanted a visitor visa to Australia for a two or three week period, which was confirmed by the visa applicant.

27. The review applicant told the Tribunal that there were no plans for the visa applicant to work in Australia, that she had no plans at all to study in Australia, that there were no plans for her to meet anybody in Australia for a romantic or marriage purpose, and that she would return to Nigeria at the end of her stay. The review applicant also told the Tribunal that the visa applicant had never experienced any harm in Nigeria on account of her gender, race, religion, political opinion (telling the Tribunal that his sister was not interested in politics) or because of her membership of any social group.

28. The Tribunal is satisfied that the visa applicant would not breach condition 8101 during a visit to Australia for two or three weeks, and accepts that she would not breach condition 8201 as there is no evidence that the visa applicant plans to study during her stay. The Tribunal also accepts that the visa applicant would not apply for a substantive visa during her stay to Australia and that she would accordingly comply with condition 8503. However, the Tribunal is not satisfied that the visa applicant would comply with condition 8531. This is discussed in ‘Other relevant matters’.

    Other relevant matters

29. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In this case, the Tribunal has considered the incentives for the visa applicant to return to Nigeria at the conclusion of her visit to Australia, against the incentives for her to remain in Australia. The Tribunal has paid particular regard to the economic conditions in Nigeria, where ‘the economy is struggling to recover from its worst recession since 1991, brought about by the collapse in global oil prices, poor governance and low productivity in the non-oil economy. Nigeria has historically suffered from fluctuating high rates of inflation, which has averaged above 10 per cent over the past six years, peaking at 18.7 per cent in January 2007’.[2]

    [2] DFAT Country Information Report – Nigeria, 9 March 2018 At 2.13

30. The Tribunal put this information to the review applicant, and noted that ‘DFAT assess that economic conditions in Nigeria create push factors for internal and external migration for individuals seeking employment opportunities. Despite strong economic growth and abundant natural resources, the Nigerian National Bureau of Statistics estimates the number of people living in extreme poverty has risen from 52 per cent of the population in 2004 to 67 per cent of the population in 2016’[3], and that this may act as an incentive for the visa applicant to not return to Nigeria. The review applicant conceded that the economic situation in Nigeria was poor and that it was difficult to obtain employment, but stated that the visa applicant was in a different situation because she had a job.

    [3] DFAT Country Information Report – Nigeria, 9 March 2018 At 2.14

31. A medical certificate dated 25 September 2018 was submitted to the Tribunal that confirmed that the mother of the applicants was diagnosed 8 years ago with dementia and that she comes to the Federal Neuropsychiatric Hospital in Enugu on an out-patient basis in the company of the visa applicant who is her primary care giver. The Tribunal accepts that the care of a parent with this type of disease would act as an incentive for the visa applicant to return home at the conclusion of her visit to Australia and has given this weight when making its decision.

32. The Tribunal has also considered the presence of the visa applicant’s family in both Nigeria and Australia. In Australia are the review applicant, his wife and their three children. In Nigeria are the remaining five siblings, as well as a mother and a father. Both parents are retired public servants and in receipt of a pension. On one hand, the presence of these family members may act as an incentive for the visa applicant to return home. However, all the siblings are adults and apart from the visa applicant, none reside in the family home or appear to be dependent on one another. The Tribunal notes the review applicant’s evidence that while his sister visits Australia, his mother will remain in the family home with her husband and his sister who is currently studying and boarding at her education institution will return home to assist in the care of his mother. Accordingly, the Tribunal gives the presence of the visa applicant’s parents and siblings little weight when making its decision because other arrangements have been made for support of the applicants’ mother and there is no reason why these arrangements would not continue into the future if the visa applicant was to remain in Australia.

33. The visa applicant does not have any dependent children and she is currently single. Despite the evidence provided as part of the visa application when it was lodged in 2017, the review applicant told the Tribunal that before the planned wedding of his sister in May 2018, the visa applicant had discovered that her fiancé had previously fathered a child before their relationship. This had been kept secret from the visa applicant and once she discovered this, she called off the wedding and the relationship. The fact that the visa applicant does not have a spouse or dependent child in Nigeria is a matter for which the Tribunal places considerable weight when determining whether the visa applicant has an incentive to return to Nigeria, rather than remain in Australia.

34. The review applicant told the Tribunal that the visa applicant does not own any property in Nigeria. The Tribunal accepts this is the case, although notes that the delegate was provided with a copy of a ‘lease agreement’ signed 2 November 1980 between Mr Okere Nwanjoku and Mr Eze Ikechukwu (the applicant’s father) for a lease of land for 520 naira. There is nothing to suggest that this land belongs to the visa applicant and the evidence was that the visa applicant does not own any property in Nigeria, which the Tribunal accepts.

35. The Tribunal accepts that the visa applicant is employed by Jean Mark Global Resources Ltd, an agricultural business since May 2016 and that she continues to be employed to this day. A letter from the employer from September 2018 confirmed her current situation and also confirmed her travel to Benin for work. The Tribunal accepts the letter of employment verification and the payslips (August 2018, July 2018, June 2018, May 2018, April 2018, March 2018) of the visa applicant as genuine, and notes that the visa applicant has supplied her bank account statement which demonstrates deposits of her salary. The Tribunal accepts that the visa applicant’s employment in Nigeria is an incentive for her to return to Nigeria at the completion of her trip and gives this some weight in considering this application.

    CONCLUSION

36. The Tribunal has weighed up the competing incentives for the visa applicant to return to Nigeria at the conclusion of her visit against the incentives for the visa applicant to remain in Australia. Ultimately, the Tribunal has concluded that the lack of property ties to Nigeria, lack of a dependent spouse and/or dependent child in Nigeria, and the economic conditions in that country at the present time are strong incentives for the visa applicant to remain in Australia and not return to Nigeria. As the Tribunal is not satisfied that the visa applicant would return to Nigeria at the end of her permitted stay, the Tribunal is not satisfied that the visa applicant would comply with condition 8531.

37. For the above reasons the Tribunal is not 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 not met.

    DECISION

38. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Nathan Goetz
    Member