Ezekiel-Hart (Migration)

[2018] AATA 4805

Ezekiel-Hart (Migration) [2018] AATA 4805 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Emmanuel Ezekiel-Hart

VISA APPLICANTS:  Master Justice Tamunoiduari Ezekiel-Hart
Master Mcbenoni Tamunoiyeomuaru Ezekiel-Hart

CASE NUMBER:  1807982

HOME AFFAIRS REFERENCE(S):           BCC2018/418758

MEMBER:Linda Holub

DATE:15 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 15 October 2018 at 9:55am

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – tourist stream – visit father and half siblings – father to fund trip – incentives to return – mother and extended family in PNG – decision under review remitted for reconsideration

PRACTICE AND PROCEDURE – non family sponsored stream – combination of hearings for review

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 4.12 Schedule 2 cls 600.211, 600.221 Schedule 8 conditions 8201, 8503

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 January 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 25 January 2018. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied that the applicant genuinely intends to remain in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 12 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s mother as 12 years of age.  An interpreter in the Tok Pisin language was made available at hearing but was not required by the visa applicant’s mother.

Jurisdiction issue

1. The review applicant who is the claimed father of the visa applicants lodged a combined application review in respect of both his sons on 23 March 2018.  On the 27 March 2018, the Tribunal telephoned the applicant to clarify if it was his intention to seek review in respect of the refusal by the Department of the two separate Visitor visa applications in relation to his sons.  He was advised that it may not be possible for him to combine the refusals into one review application because of the fact that the visa applications had been made in the Tourist steam.  It was recommended that he send a separate review application in respect of the younger of the two sons.  It was explained to the review applicant that if it is possible to accept a combined application, the Tribunal would provide him with a refund for the second application.  Further, the review applicant was advised that he had not included the name of his younger son.  The review applicant provided a revised page six listing the name of his younger son as the second named applicant on the review application.  On 27 March 2018, the Tribunal acknowledged “the application for review, in relation to decisions to refuse to grant Visitor (Class FA) visas, on 23 March 2018”[1].

   [1] AAT file, folio 29.

2. In considering the jurisdiction issue in respect of the second names applicant, the Tribunal is has had regard to regulation clause 4 of Regulation 4.12 in relation to combined applications for Tribunal review:

4)  If:

(a) a person has nominated or sponsored two or more members of a family unit in respect of their primary applications for visas of a kind referred to in subsection 338(5) of the Act; and

(b) the Minister's decisions in respect of two or more of the members of that family unit are that a visa not be granted; and

(c) the Minister's decisions are Part 5-reviewable decisions;

the nominator or sponsor may combine his or her applications for review by the Tribunal of the Minister's decisions in respect of each of the members of the family unit to whom the Minister refused to grant a visa.

1. The Tribunal is satisfied that the circumstances applying in relation to the review applicant’s sons are consistent with these requirements and therefore has considered the refusal of both of decisions to refuse the Visitor visa applications.

BACKGROUND

1. The review applicant originally came to Australia in 1998 on a Student visa and later obtained a Partner visa.  He first trained as a marine engineer and maintains membership of the relevant professional body but has subsequently gained legal qualifications and is employed as a lawyer with the Embassy of the State of Qatar. At hearing he stated that he was originally employed by the embassy in around 2002-2003 but he spent a period of time studying overseas and his current contract commenced in May of this year, for a period of three years.  The review applicant stated he is not currently married.  The visa applicants are the review applicant’s sons, aged 12 and 11.  They reside in Lae, Papua New Guinea with their mother and attend school there. 

10) The review applicant stated that he spent approximately three years living and working in PNG during which time the visa applicants were born.  He stated that he has not returned to PNG since that time.  The younger boy was born in July 2007. 

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

CONSIDERATION OF CLAIMS AND EVIDENCE

12) 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.

13) In the present case, the visa applicants seek the visas for the purposes of visiting their father while their mother’s home undergoes repair and to visit their half-siblings . This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

14) 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)).  Neither of the visa applicants has travelled outside of Papua New Guinea previously. 

15) 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.600.611(2)

·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.

16) The written and oral evidence before the Tribunal is that the visa applicants live with their mother in her family home.  The application states that the house is falling down and in urgent need of maintenance.  The intention is to fix the house while the boys visit their father for a period of 12 months.  The visa applicants’ mother stated that the posts of the house are rotting so the work is very major.  She stated that it is dangerous for the boys to remain there as the house is prone to flooding during heavy rains.  She stated that they spend as little time in the house as possible.  They mainly only sleep there at night.  When asked where she will stay during this period, she responded that she will stay with her mother in another little house but that there is insufficient room to accommodate the three of them.  She stated that her sons need to be away for an extended period because the rains interrupt the work and it is impossible to continue the work when the rains are heavy.  Because it’s not clear how long the work will take they applied for the maximum time.

17) At hearing the Tribunal heard that the review applicant receives a monthly salary of $3,000. The copy of his employment contract confirms he receives a retainer of $3,000 on a monthly basis and an additional daily fee for court appearances.  He stated that he has no assets aside from a car, no savings and no debts.  The review applicant stated that he lives alone in a two bedroom flat.  According to his oral evidence, the review applicant is financially supporting his two children in Papua New Guinea (the visa applicants), two children in the ACT and four children in Nigeria. 

18) The Tribunal asked the review applicant about the work of the visa applicant’s mother.  He stated that she had previously worked as a port manager but no longer does so.  He stated that she is best placed to explain her current role.  She stated that she currently works part-time as a casual in an office.  She would prefer to work full-time but the opportunities are limited.

19) The review applicant and visa applicants’ mother gave evidence that the visa applicants will live with the review applicant.  They provided consistent evidence that it is the intention of the review applicant that he will cover all of their costs including their air fares.  The visa applicants’ mother stated that she will contribute if she can but as she is currently working part-time it is not easy for her to do so.  Given they applied for a visa for one year, the Tribunal asked about schooling arrangements for the boys.  The review applicant stated they will go to the available school. 

20) The Tribunal is satisfied the visa applicants will not work during their time in Australia.  In relation to study or training, the review applicant gave evidence that he plans to enrol the children in school if they come for the maximum period of 12 months.  This raised a concern for the Tribunal.

21) Condition 8503 refers to entitlement and does not require compliance.

22) The Tribunal discussed with both the visa applicants’ parents the incentives that exist for them to return to PNG after their stay in Australia.  The review applicant stated that he has not spent a lot of the time with the visa applicants.  Indeed, he had previously given evidence that he has not returned to PNG since the youngest of the boys was born.  He stated that the visa applicants have a right to be where their father is.  He stated that they can apply for further application in the future if they like it in Australia but that in relation to this this application it is purely for their safety while the house is being repaired.  He stated that a further incentive for them to return to PNG is that their mother and extended family on her side live there.

23) When the visa applicants’ mother was asked about the incentives for the boys to return to PNG in line with their visa, she stated that when they were small she made all the decisions for them, but now they want to spend time with their father.  She stated they stress her out with their request to visit him.  The Tribunal encouraged her to focus on the question of incentives.  She responded that their home is in PNG and all their relatives on her side of the family.  She stated that she envisages they will want to return to PNG after seeing their father.

Findings

24) The Tribunal had some concerns that the review applicant’s financial circumstances but is prepared to accept that he is able to cover their costs during their stay.  The Tribunal accepts that the review applicant has a positive migration history and wishes to spend time with his sons.  The Tribunal accepts that the incentives in relation to the boys’ return to PNG mainly revolve around the location of their mother and their extended family.

25) The Tribunal accepts that if the boys stay for 12 months the intention is that they attend school here.  In that eventuality, they would breach condition 8201.  However, a shortened time period may enable the structural work on the house to be undertaken and for the boys to return to their home earlier, thereby not breaching condition 8201.

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

27) For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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.  It is a matter for the Department to consider the period for which a visa could be granted to enable the visa applicants to visit without breaching condition 8201.

DECISION

28) The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Linda Holub
Member