Humphris (Migration)

[2019] AATA 454

Humphris (Migration) [2019] AATA 454 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mrs Hiwot Gebremedhin Humphris
Dr Phillip Spencer Humphris

VISA APPLICANT:  Mrs Azeb Gebremedhin Gebremeskel

CASE NUMBER:  1729284

HOME AFFAIRS REFERENCE(S):           CLF2017/114359 ET01006257-C

MEMBER:Nathan Goetz

DATE:8 February 2019

PLACE OF DECISION:  Sydney

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 08 February 2019 at 4:50pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – family visit – incentives to return home – ties to Ethiopia – secure home – ongoing business – employed husband – good migration history – decision under review remitted

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The visa applicant applied for a Visitor (Class FA) visa on 20 October 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 Tourist stream. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

2. On 7 November 2017, the delegate refused to grant the visa under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa because the delegate was not satisfied that the visa applicant meet cl.600.211. This clause 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.

3. On 23 November 2017, the review applicants lodged a review of this refusal decision with the Tribunal. The review applicants included a copy of the decision record with the review application.

4. On 7 February 2019, the review applicants appeared before the Tribunal to give evidence and present arguments as to why the visa applicant met the requirements of cl.600.211. The Tribunal also received oral evidence from the visa applicant by telephone from Ethiopia.

5. The review applicants were represented in relation to the review by their registered migration agent Dr Etienne Hugo of Teleo Immigration.

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. Both Mrs Hiwot Humphris and her husband Dr Phillip Humphris were named as the review applicants. However, as discussed with the review applicants at the hearing, Dr Humphris had no standing to apply for a review of the decision as he was the brother-in-law of the visa applicant and is not a ‘relative’ as defined for the purpose of this review. Mrs Hiwot Humphris, as the sister of the visa applicant, has standing for this review and the Tribunal has proceeded on that basis.

   The Review Applicant

9. Mrs Hiwot Humphris was born in Ethiopia. The visa applicant is her sister. Mrs Hiwot Humphris is currently studying to be a nurse. She met Dr Humphris while he was working in Ethiopia. He is an Australian-born citizen and they formed a relationship and eventually married. Mrs Hiwot Humphris came to Australia pursuant to a spousal visa and is now a permanent resident. Dr Humphris works as a medical doctor and they live in suburban Sydney. The couple have two children and provided documentary evidence of significant savings. Mrs Hiwot Humphris had recently returned from a four week holiday to Ethiopia. She described her relationship with the visa applicant as very close. Mrs Hiwot told the Tribunal that her family were Orthodox Christians and were ethnically Tigrayans. Her family were originally from northern Ethiopia but she grew up in the capital of Ethiopia, Addis Abba. She told the Tribunal that her sister has been married for about three years and has no children. Mrs Hiwot Humphris told her that her sister’s marriage with her husband was good and that her sister’s husband had never been violent towards her sister. Her brother in-law is employed by Ethiopian Airlines as a pilot since November 2004. A letter confirming this employment was provided. Mrs Hiwot Humphris told the Tribunal that her sister had never expressed any fear of harm because of her race, religion, membership of a social group, sex or political opinion and told the Tribunal that she would expect that if her sister did have any such fear, her sister would have expressed that to her. She told the Tribunal that the visa applicant wishes to visit Australia for three weeks.

   The review applicant told the Tribunal that her sister has travelled to a host of places overseas, particularly to Thailand where she travelled in connection with her work. Her sister’s overseas travel included Europe. Mrs Hiwot Humphris told the Tribunal that although there are family members in Europe, her sister did not see any of them during her trips. The Tribunal was told that her sister’s work in Ethiopia is in textiles. Her sister imports textiles from Thailand which are made into clothing. Her sister employs a sewer in the business. There is also a niece (whose parents have passed away) who occasionally works at the store on a needs basis. She will be able to manage the business during the visit to Australia and a letter was provided by Ms Hermela Dereje to confirm that this is the case. The business is operated out the converted home of the parents of the review and visa applicants parents. Their parents are deceased.

   The Visa Applicant

10. Mrs Azeb Gebremedhin Gebremeskel was born in Ethiopia and continues to reside there. She told the Tribunal that she wishes to visit Australia for three weeks. The visa applicant confirmed that she is married, has no children, and that her husband continues to be employed as an airline pilot. She and her husband live in a home in the Addis Ababa that is subject to a lease, and her business is 30 minutes away in her deceased parents’ former home. Her evidence regarding her business activity was consistent with the evidence given by the review applicant. She confirmed that when she was giving evidence to the Tribunal her husband was asleep and not listening as she gave her evidence. She confirmed that her marriage was good and that her husband had never been violent towards her, that she had no fear of her husband, and that she would have told her sister if she had any such fear. Her husband supports her coming to Australi for a visit and a letter was provided to the Tribunal to confirm this. She told the Tribunal that she had no fear of returning to Ethiopia because of her race, religion, political opinion, membership of a particular social group or sex. She told the Tribunal that her sole purpose in coming to Australia was for tourism purposes.

11. The Tribunal notes that both the review applicant and the visa applicant gave evidence that the visa applicant is now working. This was in contrast to the delegate decision which referred to the visa applicant being unemployed. In the visa application form, the visa applicant ticked the box to declare that she was unemployed and wrote on the form ‘on the process of import and export business from Thailand Bangkok. My last employment was in January 2016 to January 2017 worked as marketing agent on contract basis at Lisam Foreign Trade Auxiliary’. A letter confirming the past employment at the Trade Auxiliary was submitted with the application. In the oral evidence to the Tribunal, both the visa applicant and the review applicant explained to the Tribunal that at the time of the visa application, the visa applicant had shut her garment business because the owner of the premises where her previous shop was located wanted the premises back. The business was consequently closed for about 12 months. During this time, their parents’ former family home was converted into a shop and thereafter the business resumed. Prior to the business being closed and the visa applicant undertaking those renovations, the visa applicant had operated her business for about 5 years. An Addis Ababa City Administration Trade Bureau document stating that a business licence had been issued on 19 September 2018 noted that a licence had previously been issued in respect of this business. The Tribunal accepts that the visa applicant has operated her business for a significant period of time prior to the 12 month closure, and accepts that the business has recommenced operation at the time of the Tribunal hearing.

12. The Tribunal was concerned that the migrant agent’s written submission suggested that the reason the visa applicant had put down unemployed was due to an error and that she should have declared that she was self-employed. This was in conflict with the oral evidence of both the visa applicant and the review applicant. The Tribunal’s view of the employment declaration stating ‘in the process’ suggested that the applicant was unemployed at the time of the application but in the process of restarting her business. The Tribunal sought clarification from the migration agent who stated that his written submission was poorly expressed and that he meant to convey that she was self-employed and that as she was in the process of restarting her business it was, in effect, a grey area as to whether she was employed or not at that stage. The Tribunal accepts that that the submission as poorly expressed and accepts the visa applicant’s explanation about her employment circumstances, which was consistent with the explanation provided by the review applicant about the employment issue.

13. In the present case, the visa applicant seeks the visa for the purposes of visiting her sister. 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)).

15. The visa applicant has never previously travelled to Australia. Accordingly, the Tribunal can give no weight to past compliance with Australian immigration laws as a positive factor towards the visa applicant meeting the criteria.

16. The visa applicant has demonstrated the following travel from her Passport, as summarised by the migration agent:

    Travels to Thailand

    08 Sep 2014 - 20 Sep 2014

    21 Apr 2015 - 26 Apr 2015

    01 Sep 2015 - 08 Sep 2015

    21 Dec 2015 - 26 Dec 2015

    12 Apr 2016 - 20 Apr 2016

    02 Oct 2016 - 22 Sep 2016

    23 Feb 2017 - 26 Feb 2017

    25 Jun 2017 - 27 Jun 2017

    29 Sep 2017 - 05 Oct 2017

    05 Apr 2018 - 08 Apr 2018

    Travel to Germany

    25 Nov 2017 - 28 Nov 2017

    Travel to Italy

    25 Dec 2018 - 27 Dec 2018

17. While the Tribunal accepts that there is nothing before the Tribunal suggestive that the visa applicant did not comply with any conditions of those visas, compliance with overseas visa would not be information that the Tribunal would have access to. The Tribunal gives no positive weight to this previous travel outside of Ethiopia to support a finding that the visa applicant would comply with conditions on an Australian visitor visa, but has taken that previous travel into account in the visa applicant’s favour under ‘relevant matters’ discussed below.

18. 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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

19. There is no evidence before the Tribunal that the visa applicant intends to work during any proposed visitor visa. Both the visa applicant and the review applicant told the Tribunal that the sole purpose of coming to Australia was for a family visit. The visa applicant told the Tribunal that she was not visiting Australia for any purposes related to her business. The Tribunal is satisfied with the evidence of Mrs Hiwot Humphris that she and her husband will be providing accommodation in their four bedroom suburban home. The Tribunal is satisfied that the visa applicant will not work during her three week visit to Australia and the Tribunal is satisfied that the visa applicant will not engage in any study or training in Australia during her visit. The Tribunal is satisfied that the visa applicant will comply with conditions 8101 and 8201 of any proposed visitor visa granted to the visa applicant.

20. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In this case, the Tribunal has considered the visa applicant’s ties to Ethiopia, whether the visa applicant’s incentives to return to her country of nationality outweigh her incentives to return to Australia, and independent country information regarding the economic and security situation in Ethiopia.

21. The visa applicant is a married woman who operates a small business in Ethiopia. She has done so for many years, save for a period when her business was closed because it needed to be relocated. She has also undertaken contract work while that business was closed and appears to have a good work history. Her previous travel to Thailand is consistent with her claimed business activity. She has always returned to Ethiopia at the end of any of her travel. The visa applicant is a married woman and her husband is employed as an airline pilot. This is clearly a very good and financially rewarding job. The state of her marriage is good and the evidence before the Tribunal is not suggestive that the visa applicant will not return to Ethiopia and her relationship with her husband. There is a family home where both the visa applicant and her husband reside, as well as separate premises for her business, although the Tribunal notes that these premises are subject to long-term leases as all land in Ethiopia is owned by the state (DFAT Country Information Report on Ethiopia, 28 September 2017, at 2.7. There is evidence of the visa applicant’s travel to Europe and the Tribunal finds that if the visa applicant had any concerns about her safety she would have remained in Europe, because Europe has a similar standard of living as Australia, and she has extended family that she could seek out and provide her with support.

22. The Tribunal has considered the visa applicant’s ties to her home country through marriage, a secure home, an ongoing business, and an employed husband, together with previous travel to (and most importantly, returning from) Europe factors which suggest that the visa applicant will return to Ethiopia at the end of any visit to Australia. The Tribunal has assessed these incentives against independent country information regarding Ethiopia, which relevantly observes that the Ethiopian government delivers a high level of stability across most of the territory of Ethiopia and is able to maintain a high level of public order in major population centres (DFAT Country Information Report on Ethiopia, 28 September 2017 at 2.27). The Tribunal is of the view that the evidence provided by both the visa applicant and the review applicant is genuine and credible, and that the country information suggests that the visa applicant’s ties and incentives to return to Ethiopia are sufficient.

    CONCLUSION

23. 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

24. 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.

    Nathan Goetz
    Member