Idres (Migration)

[2021] AATA 2637

Idres (Migration) [2021] AATA 2637 (7 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Farhan Idres

VISA APPLICANT:  Mrs Kimia Sherif Abubeker

CASE NUMBER:  1901278

HOME AFFAIRS REFERENCE(S):          BCC2018/5341152

MEMBER:John Longo

DATE:7 June 2021

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 07 June 2021 at 9:47am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – the visa applicant genuinely intends to stay temporarily in Australia – positive migration history – good international travel history – incentives to depart Australia –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 10 January 2019 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 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 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 intended to stay temporarily in Australia for the purpose for which the visa could be granted.

5. The review applicant appeared before the Tribunal on 14 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The Tribunal exercised its discretion to hold the hearing by video hearing. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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. In the present case, the visa applicant, who is the review applicant’s mother, seeks the visa for the purposes of visiting the review applicant’s family in Australia and sightseeing. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

9. 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). The Tribunal had the benefit of the review applicant’s oral evidence at the hearing. The Tribunal found the review applicant’s evidence to be credible and accepts this evidence.

   Clause 600.211(a)

10. The review applicant gave oral evidence that the visa applicant had not travelled to nor applied to travel to Australia in the past. In the circumstances, the Tribunal makes no findings with respect to previous compliance with Australian immigration conditions.

    Clause 600.211(b)

11. The Tribunal must also consider whether the visa applicant intends to comply with the mandatory conditions to which the Subclass 600 visa would be subject: cl 600.211(3)(a).

12. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·8101 – must not work in Australia;

    ·8201 – must not engage in study or training in Australia for more than three months; …

13. The Tribunal discussed each of these conditions with the review applicant. The review applicant told the Tribunal that the visa applicant would comply with all conditions. He stated that the visa applicant is part of the ‘afsha’ in her community and this would mean she would want to return home. Her other children and grandchildren, who speak her language, as well as her property in Addis Ababa, are also motivators for her to return home. The Tribunal accepts the review applicant’s oral evidence on the reasons why he thinks the visa applicant would comply with the conditions of the visa. This evidence weighs in favour of the visa applicant having a genuine intention to visit Australia temporarily.

    Clause 600.211(c)

14. The Tribunal has also considered all other relevant matters, pursuant to cl 600.211(c).

15. In the primary decision, the delegate noted the security and environmental factors in the visa applicant’s usual country of residence, Ethiopia, which may induce the applicant not to depart Australia. The delegate also stated that the visa applicant had not provided evidence of family ties which might act as an incentive to return to Ethiopia.

16. The Tribunal asked the review applicant questions to ascertain the factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay and those factors that would act as an incentive for her to return to Sudan. The review applicant stated that while the visa applicant is not employed, as she is a retired widow, she supports herself through her rental income from renting property. She receives approximately 35,000 Ethiopian birr per month in income from her property (approximately AUD1,050 per month) which equates to an upper middle-class income. The review applicant stated that the property is valued at about 5.5 million Ethiopian birr (approximately AUD164,000).

17. The review applicant also stated that the visa applicant has two children in Ethiopia and seven grandchildren, as well as two sisters who have their own children. All of the family live near the visa applicant. The visa applicant has cousins in Australia, and the review applicant is her only child living in Australia.

18. The review applicant told the Tribunal that the visa applicant had travelled to Saudi Arabia for a pilgrimage every two or three years with her daughter. The review applicant stated that the visa applicant had been to Malaysia about 10 years ago and that on all of their trips had complied with visa conditions. The Tribunal has no reason to doubt the veracity of the review applicant’s oral evidence. This evidence weighs in favour of the visa applicant having a genuine intention to visit Australia temporarily.

19. With respect to factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay, the Tribunal notes that the visa applicant has some family members present in Australia. The review applicant did not state that there were plans for the visa applicant to visit these relatives, apart from the review applicant and his family.

20. The review applicant stated that the visa applicant would be visiting for a period of three weeks, during school holidays, as he is a teacher and so cannot take additional time outside of school holidays. He stated that the reason for the travel is because his wife and children do not wish to travel to Ethiopia as they do not speak the language. He stated that it is also more economical for the visa applicant to visit Australia than for his whole family (the review applicant, his wife and four children) to travel to visit the visa applicant.

21. After considering all the evidence before it, on balance, the Tribunal considers that the presence of the visa applicant’s two other children, as well as their families and her assets (property), form stronger incentives for her to return to Ethiopia than the incentive to remain in Australia with her son and his family. The Tribunal has also considered the written submissions of the review applicant. Overall, having regard to the specific circumstances of the case, the Tribunal does not share the delegate’s concerns.

22. 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

23. 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.

    John Longo
    Member