Famakinwa (Migration)

[2024] AATA 254

Famakinwa (Migration) [2024] AATA 254 (31 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Stephen Tosin Oladimeji Famakinwa

VISA APPLICANT:  Ms Bolanle Abigail Famakinwa

CASE NUMBER:  2219120

HOME AFFAIRS REFERENCE(S):          BCC2022/5096327

MEMBER:Margie Bourke

DATE:31 January 2024

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 31 January 2024 at 12:52pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – past compliance with visa conditions – intention to comply with visa conditions – No Work condition – No Study condition – No Further Visa condition – No Further Visa condition – other relevant matters – review applicant’s previous sponsorships – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 Home Affairs on 20 December 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 29 November 2022. 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 (Cth) (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 intends to stay temporarily in Australia.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, and the nature of the review. The Tribunal had regard to the fact the visa applicant would be giving evidence remotely from overseas. The Tribunal was of the view that the conduct of the hearing by video would allow the review applicant to give evidence and present arguments, and allow the Tribunal to conduct a fair and effective hearing and to properly assess the evidence before it. The review did not involve an extensive amount of documents to be put to the review applicant during the course of the hearing. The review was constituted to a member in Victoria and the review applicant resided in a different state. For these reasons the review applicant was invited to attend the hearing to be conducted by video.

6. The review applicant appeared before the Tribunal by video connection on 31 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who attended the hearing by video from overseas. The visa applicant attended the hearing by video from her mobile phone, and at the time of attendance the visa applicant experienced a power outage. The visa applicant was barely visible by video connection, but at the request of the Tribunal arranged some lighting by candles.

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 a family visit, specifically to visit her brother and his children. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. Cl.600.211(a): – 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.

11. The Tribunal is satisfied that the visa applicant has previously travelled overseas to Japan and to the UK. There is no evidence that the visa applicant has previously travelled to Australia, or held a substantive, or a bridging visa in Australia. There is no evidence before the Tribunal of compliance or non-compliance with the conditions of any previous Australian visa. The Tribunal gives this consideration neutral weight in its assessment of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

12. Cl.600.211(b): – The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. 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.

13. The Tribunal is satisfied based on the information provided, and the oral evidence before it in the hearing, that the visa applicant intends to visit her brother and her niece and nephew in Australia. The Tribunal is satisfied based on the evidence of the visa applicant that she does not intend to work, study, train or apply for another visa whilst in Australiaais the holder of a visitor visa.

14. The Tribunal is satisfied that the visa applicant resides in Nigeria, is married, and has employment. The Tribunal is satisfied that the visa applicant and her husband own property. The Tribunal is satisfied the visa applicant is one of six children, four of whom now reside overseas including the review applicant. The Tribunal is satisfied that the visa applicant and her sister are the two remaining children who have the responsibility of caring for their parents. The Tribunal is satisfied that the visa applicant intends to return to her home country before the expiration of the visa due to her commitments to her husband, her parents, her employment and her community.

15. The Tribunal is satisfied based on the evidence of the visa applicant that she intends to comply with the ‘rules’ in relation to the visa. The Tribunal accepts the evidence before it that the review applicant and the visa applicant are aware that if the visa applicant does not comply with the conditions to which the visitor visa would be subject, that the review applicant may not be able to successfully sponsor other members of his family to visit him in the future.

16. The Tribunal accepts the evidence of the visa applicant that she intends to comply with the conditions to which the visitor visa would be subject. The Tribunal gives this consideration positive weight in its assessment of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

17. Cl.600.211(c): – The Tribunal has also considered all other relevant matters. The Tribunal is satisfied that the review applicant has previously sponsored other members of his family, including his sister and his mother and his aunt in 2012, and his brother in 2022, to travel to Australia as the holder of visitor visas. The Tribunal is satisfied that the review applicant’s other family members complied with the terms of the visitor visas.

18. The review applicant gave the Tribunal his assurance that he would ensure the visa applicant understood all the conditions to which the visa would be subject, that she would comply with those conditions, and that she departed Australia before the expiration of the visitor visa.

19. The Tribunal gives the consideration of these other relevant matters positive weight in its assessment of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    Conclusion

20. 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

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.

    Margie Bourke
    Member