Feyesa (Migration)

[2019] AATA 4931

Feyesa (Migration) [2019] AATA 4931 (26 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Alemtsehay Alemayehu Feyesa

VISA APPLICANT:  Ms Mamme Akalu Hailemariam

CASE NUMBER:  1825356

HOME AFFAIRS REFERENCE(S):           BCC2018/3857929

MEMBER:Adrienne Millbank

DATE:26 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 26 July 2019 at 12:26pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visiting family at the birth of a new child – limited details of visa applicant’s business – visa applicant’s income since her husband died – family and social connections in Ethiopia – compliant migration history in other countries – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 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 13 July 2018 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 is a 50 year old national of Ethiopia who lives in Addis Ababa. The review applicant and sponsor is her 34 year old Australian citizen daughter, who migrated to Australia in 2013 under the offshore humanitarian program. The review applicant has 3 children, aged from one to four years old.   

3. The visa applicant applied for the visa on 21 June 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 Sponsored Family stream.

4. At the time of application the visa applicant indicated that she intended to come to Australia for three months, from 25 May 2018 to 25 August 2018, around the time of the birth of her daughter’s third child. At the time of decision, the visa applicant intends to come whenever the visa is granted, and to stay for three months.

5. 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.

6. The Delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. The Delegate was not satisfied that the visa applicant intended a genuine visit.

7. The Delegate noted that the visa applicant had declared that she was self-employed as the owner of a pool hall, but provided no evidence of the scope or scale of this business, or to show that it was ongoing or profitable enough to act as an incentive to return to Ethiopia.

8. The Delegate acknowledged that the purpose of the applicant’s intended travel was to visit her daughter, and acknowledged also the circumstances (the birth of the sponsor’s third child) that motivated the application. The Delegate noted however that the existence of such a purpose does not in itself demonstrate that the applicant only intends a genuine temporary stay, and found that the applicant had not provided sufficient evidence to demonstrate that her true intention is only for a genuine temporary stay in Australia.

9. The review applicant appeared before the Tribunal on 3 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence, by telephone, from a friend of the review applicant in Brisbane. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.

10. The review applicant was represented in relation to the review by her registered migration agent, who attended the hearing by phone.

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

    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 applicant seeks the visa for the purposes of visiting family, her daughter in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)).

15. The visa applicant has not previously been granted a visa to enter Australia. According to the review applicant, the visa applicant lodged previous Visitor visa applications at the time of the birth of the review applicant’s first two children, which were refused.

16. 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.

17. The visa applicant indicated in her application form that she does not intend to engage in study or training in Australia, and the Tribunal accepts that she has no such intention.

18. The review applicant in her statutory declaration signed on 28 June 2019 and at hearing stated that her mother intends only to visit; that she does not intend to work; and that she does not intend to apply for another visa or remain in Australia after the end of permitted stay. There is no information or evidence before the Tribunal to indicate, and the Tribunal accepts, that the visa applicant does not intend to apply for another substantive visa other than a protection visa while on a three-month Visitor visa.

19. For the reasons discussed below, the Tribunal is not satisfied that the applicant does not intend to remain in Australia after the end of permitted stay, and that she would not seek to work in Australia.

20. The Tribunal has considered all other matters relevant to the visa applicant’s claim to genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.   (cl.600.211(c)).

21. Documentary evidence in support of the visa application at the time of application included: a letter from the review applicant’s General Practitioner, dated 23 April 2018, stating that the applicant had two children, was 36 weeks pregnant with the third and wanted her mother with her in Australia to help at the time of the baby’s birth; a copy of a business licence showing the visa applicant is the registered owner of a pool hall; and statement of transactions from a bank account showing that as at 24 March 2018 the visa applicant held a balance of AUD 10,850 in a bank account in Ethiopia.

22. Further documentary evidence provided to the Tribunal comprised a statutory declaration from the review applicant, received on 1 July 2019. In this submission, the review applicant declared that:

    -she has arranged for her mother to visit Australia ‘due to my social commitment and my children’s engagement to school’;

    -she has not seen her mother for over 16 years, since she let Ethiopia for Egypt in 2003;

    -her father died in 2018, and she suffers distress from separation from her mother;

    -a mother of a close friend who had ‘exactly similar documentation’ was granted a visa while her mother was not and ‘I have been left to wonder why’;

    -she hasn’t been able to take her children overseas because of ‘extreme financial difficulty’;

    -her mother knows her grandchildren in Australia only from photos and phone conversations;

    -her mother is a hardworking and well respected business woman who earns a regular and above-average income and has a comfortable life;

    -her mother since her husband’s death has lived with her mother who is ‘in her old age of 80s’, a brother and an adoptive child. During her mother’s absences from Addis Ababa her brother and adoptive child take care of her grandmother;  

    -her mother is a prominent member of the community in Ethiopia;

    -her mother has extended relatives who are socially, financially and psychologically dependent on her;

    -her mother has held a USA visa enabling unlimited entry, and ‘has made extensive travel internationally; and

    -her mother will comply with her visa conditions.

23. At hearing the Tribunal raised the issue of the Delegate’s decision and the reason the visa application was refused. The review applicant acknowledged that she had received the Delegate’s decision, and that she had provided a copy of the decision to the Tribunal. The Tribunal asked the review applicant why she had not addressed the specific concern set down in the decision, that is, that no evidence had been provided regarding the scope or scale of her mother’s business to show that it was ongoing or profitable enough to act as an incentive for her mother to return to Ethiopia. Further, no documentary evidence was provided to the Tribunal to support the claim that the visa applicant is ‘a hardworking and well respected business woman who earns a regular and above-average income and has a comfortable life’.

24. The Tribunal asked this question, rewording it, several times. The review applicant responded each time that she needs her mother to visit for a cultural reason, to confer blessings on her children; that she needs her mother because she is stressed and depressed; and that refusing her mother a Visitor visa was unfair because other people in similar circumstances to hers who provided similar documents had had their mother visit them. The review applicant’s friend, as sworn witness, stated that she had helped the review applicant with the visa applications; that the review applicant was stressed and depressed and needed her mother to visit her; that it was traditional custom for mothers to bless their children’s newborn children; and that a friend in circumstances similar to the review applicant’s had sponsored her mother to visit her and the review applicant was angry about her unjust treatment as well as depressed.

25. Regarding the review applicant’s claim that a mother of a close friend who had ‘exactly similar documentation’ was granted a visa while her mother was not, the Tribunal finds, as the review applicant was advised at hearing, that it is reviewing the specific circumstances of the visa and the review applicant.

26. The Tribunal asked the representative if he could shed light on the issue of why evidence was not provided to the Tribunal that addressed the Delegate’s concern as set out in the decision, and that supported the claim that the visa applicant is ‘a hardworking and well respected business woman who earns a regular and above-average income and has a comfortable life’.

27. The representative explained that no evidence regarding the ongoing nature or profitability of the visa applicant’s business in Ethiopia was provided because such evidence does not exist. He advised that Ethiopia is a poor and ‘backward’ country, and for this reason the visa applicant’s pool hall operates on a cash basis. The Tribunal does not accept that no evidence about the business’s viability and profitability was provided only for the reason that Ethiopia is a poor and ‘backward’ country. The Tribunal accepts that Ethiopia is a poor country.  The Tribunal considers however that if the visa applicant’s business was ongoing and profitable sufficient to be an inducement for her to return to Ethiopia, evidence of its viability and profitability, such as regular bank deposits or statements, could have been provided.

28. The representative further argued that the visa applicant has been ‘privileged’ compared to others in Ethiopia. She had, for example, travelled with her husband when he worked for Ethiopian Airlines, to the United Kingdom, Italy, Thailand and South Africa. The review applicant advised and provided evidence in the form of passport stamps, that her mother has in recent years, in 2015, 2016 and 2017 visited the USA, where her other daughter, and a son live. There is no information before the Tribunal to indicate that the visa applicant has not complied with her visa conditions on these occasions.

29. Regarding the review applicant’s financial situation and income, the review applicant advised that she has not been in paid employment since the birth of her first child, and is in receipt of Centrelink benefits. She stated that she has no partner. She stated that at the time of decision she has a boyfriend, but that he does not live with her or support her financially. She stated that she has not returned to Ethiopia to see her mother and other family members for the sole reason that she could not afford the airfares.

30. Regarding the visa applicant’s financial situation and income in Ethiopia, the Tribunal accepts on the evidence provided to the Department, a statement of transactions from 1 August 2017 to 24 March 2018, from her Ethiopian bank account, that the visa applicant held on 24 March 2018 a balance of around AUD 10,850, sufficient to fund her travel and stay in Australia. The Tribunal notes however that for most of the period covered by this statement of transactions, from 1 August 2017, the visa applicant had a balance of only between AUD 500 and AUD 650 in her bank account, insufficient to fund her travel and stay, and that the three largest deposits, by some margin, were made in the few days prior to the final date of the statement, 24 August 2018. 

31. The Tribunal accepts that the visa applicant, when her husband was an employee of Ethiopian Airlines, lived a relatively comfortable life in Ethiopia, and that she has travelled internationally, including to the USA in 2015, 2016 and 2017. The Tribunal notes however that the visa applicant’s husband died in 2018. No documentary evidence has been provided, because such evidence on the advice of the representative does not exist, that that the visa applicant has a regular income or that her business in Ethiopia is profitable such as to provide an inducement for her to return. The Tribunal places significant weight on this consideration.

32. The Tribunal accepts and gives weight to the visa applicant’s compliant travel and stays in the USA where she has a daughter and a son. The Tribunal acknowledges and gives weight to the visa applicant’s extended family and social connections in Ethiopia. The Tribunal acknowledges the visa applicant’s mother in Ethiopia is in her 80s. The Tribunal notes however that the visa applicant’s brother and other family members including an adopted child live in the same house and also care for the visa applicant’s mother, and for this reason does not consider the visa applicant’s mother a significant incentive for her to return. The Tribunal notes and gives significant weight to the presence of the visa applicant’s daughter and three grandchildren in Australia.

33. Having considered and weighed the evidence and circumstances of the visa applicant, the Tribunal finds her incentives to return to Ethiopia, on balance, to be outweighed by her incentives to remain in Australia.

34. 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

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

    Adrienne Millbank
    Member