Igba (Migration)

[2023] AATA 4734

Igba (Migration) [2023] AATA 4734 (6 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Beatrice Ojoko Igba

VISA APPLICANT:  Mr Victor Chimamkpa Igba

REPRESENTATIVE:  Mr Isaiah Okorie (MARN: 1793819)

CASE NUMBER:  2216525

HOME AFFAIRS REFERENCE(S):          BCC2021/2396533

MEMBER:Jane Marquard

DATE:6 December 2023

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 06 December 2023 at 7:35am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – substantial compliance with previously held visa – intention to comply with visa conditions – other relevant matters – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The review applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 19 September 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 is a 32-year-old man from Nigeria.

3. He applied for the visa on 13 December 2021 in order to visit his mother and other family in Australia. His mother is the review applicant in this matter.

4. The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate was not satisfied that the visa applicant genuinely intended to stay temporarily for the purposes for which the visa was granted. In particular the delegate noted that the visa applicant did not provide details of financial or employment incentives to return to Nigeria at the end of his visit to Australia.

5. This is a review of that decision by the Administrative Appeals Tribunal.

   EVIDENCE

6. The Tribunal has considered evidence provided to the Department and Tribunal as set out in Attachment A. 

7. Significant new evidence was provided to the Tribunal. The evidence is referred to where relevant in the findings.

8. No hearing was necessary in this matter as the Tribunal was able to determine the matter on the papers pursuant to s 360(2)(a) of the Act.

   FINDINGS AND REASONS

9. 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.

10. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to 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.

11. The Tribunal must have 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.

12. For the following reasons the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Purpose

13. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222 of Schedule 2 to the Regulations.

    Substantial compliance with previously held visa

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 was last in Australia in 2018. His last substantive visa was a Diplomatic (Subclass 995) visa granted in 2007 as a dependent. There is no information before the Tribunal that he did not comply with conditions of the visa.

16. The Tribunal is satisfied that he complied substantially with the conditions of the last substantive visa held. This is taken into consideration favourably in respect of his intention to stay temporarily for the purpose of his visa.

    Intention to comply with visa conditions

17. 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.

18. The visa applicant originally applied for a six-month visa. He has now applied to visit from 10 December 2023 to 27 January 2024. As this is a shorter time period over the Christmas period, it is not conducive to work or study.

19. Furthermore, the visa applicant lived in Australia from 2007 to 2018. There is no evidence that he breached any visa conditions which suggests that he would comply with visa conditions on this occasion. The Tribunal also considers that there are other relevant matters which indicate he would not remain in Australia after end of permitted stay – these factors are considered later in this decision.

20. The Tribunal is satisfied for these reasons that the visa applicant intends to comply with conditions to which the visa would be subject. This is taken into consideration favourably in assessing whether he genuinely intends to stay temporarily for the purpose of the visa.

    Other relevant matters

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

22. Firstly, the Tribunal has considered the incentives for the visa applicant to return to Nigeria at the end of his visit. His parents and two sisters are living in Australia, which prima facie appears to be a reason to stay in Australia. However the applicant has claimed that he has strong relationships with his aunt, uncles, cousins and others in Nigeria. He also owns property, has a job, and is connected to the community through church and volunteer commitments.

23. He provided a copy of a document showing ownership of land in Abia. This land was donated to him by his parents and a legal document (undated but signed) was provided in relation to the land. His mother said in her Statutory Declaration that he is ‘now settled in Nigeria’. She said that he has expressed his desire to permanently settle and have a family in Nigeria, ‘warranting me and his father to gift him a family land to came to his father by inheritance. The fact that he has strong ties to Nigeria and wants to expand his network and career there and the fact that we are unable to visit given our history and circumstances, is why we desire for him to visit us in Australia’.

24. He also provided to the Department a letter stating that he had worked part-time at Apptide Technologies as a graphic designer since January 2020. He provided an approval for a six-week absence. In his updated Statutory Declaration to this Tribunal, he confirmed that he worked at Apptide, ‘with innovative gadgets and appliances, offering valuable guidance to customers in making informed decisions about their needs and optimal product utilisation’. He provided employment documents (contract of employment, tax clearance certificate and ledger signings) and an updated six-week leave approval. He said that he gained great satisfaction from his job. It was also submitted, and is accepted by the Tribunal, that he is paid over 90 000 naira per month which is more than double the average monthly living wage in Nigeria. He earns extra income through freelancing as a graphic designer and has low monthly overheads as he lives with a family member. He saves on transportation costs as he works from home a few days a week. It was noted by the representative that it may be very difficult for him to find work in Australia, yet he had a good job in Nigeria.

25. He has also provided evidence that he is an active member of Dominion City Church, Lokogoma, Abuja. He had been active since September 2018 and a full member from February 2019. This was confirmed by a Membership Certificate provided to the Tribunal and a letter from the pastor.

26. The Tribunal is satisfied that having close family members, land, a job and community connections comprise significant incentives to return to Nigeria at the end of his visit.

27. Secondly, the Tribunal has considered his purpose of visiting his parents and his three siblings, as well as a trip sightseeing across Australia, which does indicate the trip is in the nature of a temporary rather than permanent visit. He provided to the Tribunal a document called a ‘Trip Planner’ which included details of an itinerary across Canberra, Sydney, Melbourne and Queensland, with activities such as Mt Stromlo Observatory, the Christmas Carol Service, visiting family and friends, the Sydney Opera House, family picnics and the zoo. The Trip Planner included a budget. His mother said that a visit in Australia would give him an opportunity to celebrate how far his younger siblings have gone with their education and various careers and also to see his friends again even if its for a short time’. His mother said in a Statutory Declaration dated 6 March 2022 that they had been isolated for so long and they wished to reconnect even if for a short while. He lived in Australia from 2007 to 2018 such that it is likely he would like to revisit his friends and family, as well as sightseeing. It seems reasonable that he wishes to visit temporarily for the purposes of seeing close family and friends and sightseeing, particularly given that the applicants’ parents fear returning to Nigeria due to their prior political activity.

28. Thirdly the Tribunal has taken into consideration favourably the fact that the applicant lived in Australia from 2007 until 2018 and complied with visa conditions, including returning when his visa was refused even though his family was in Australia. The Tribunal notes that he came to Australia as a child in 2007 as a dependent on his parents’ visa and later applied for student visas and as a dependent on his father’s student visa, which was refused on health grounds. A Statutory Declaration of his mother dated 6 March 2023 stated that he went to primary school in Australia and assimilated and settled into his new environment with his siblings. He ‘quickly made friends, loved school, was very cool headed and was loved by his mates’. She said that when he finished high school, he applied for a visa to continue studying but was refused on health grounds, as he suffers from sickle cell anaemia, a condition which ‘does not pose any risks to the Australian public’. The family had paid medical costs. The Tribunal accepts his submissions that the fact that he returned to Nigeria when his visa was denied ‘as a law-abiding citizen’ indicates that he would continue to comply with Australian laws.

29. Fourthly, the applicant has now requested that he visit Australia from 10 December 2023 to 27 January 2024. This is a relatively short period for a visit and appears to correlate with a temporary visit.

30. Fifthly, the visa applicant and review applicant and her family in Australia appear to be of good character. The visa applicant has assured the Tribunal that he will abide by Australian laws and visa conditions. The visa applicant first lived in Australia with his family from 2007. His father worked at the Nigerian Embassy in Canberra. The applicant studied for his Year 12 in 2009, which he achieved (a Certificate was provided) and a Certificate in Laboratory Techniques and Laboratory Skills (Certificates from Canberra Institute of Technology provided). He claimed (and there is no evidence to the contrary) that while pursuing his academic pursuits he was law-abiding and respectful.

31. The visa applicant has provided evidence that he actively engaged in various activities with his peers and the local community. In Nigeria he is an active member of the church and has been involved in charity events such as outreaches, evangelism and fundraising. A letter form the Branch Pastor at Dominion City Church dated 30 October 2023 stated that he had donated his time, resources and acts of service to the church and the community at large. The pastor said that he was always involved in charity events at the church, checks on members and helps out in any capacity as needed. He has also been a volunteer at Odu Foods, helping with counselling, fundraising, cooking and mentoring. A letter from the Supervisor of Odu Foods dated 30 October 2023 stated that he had volunteered since 2019 and he could attest to his dedication, compassion and leadership skills. He said that the visa applicant had helped the youth and underprivileged by providing them with access to food and shelter, and by setting a positive example. He said that the visa applicant had the potential to be a leader in the future.

32. The review applicant is an Australian citizen.  She works at BaptistCare. Her younger son works in youth protection services and is also an Australian citizen. The visa applicant’s father is an Australian permanent resident and has applied for citizenship. They have lived in Australia since 2007 and there is no indication that they have ever breached any Australian laws. According to the representative, they are a tight-knit family who always show up for each other.

33. The Tribunal is satisfied on the basis of the evidence considered cumulatively that the applicants are of good character and there is nothing in their background to suggest that the visa applicant does not genuinely intend to stay temporarily for the purpose for which the visa is granted.

    Summary of findings

34. For the above reasons considered cumulatively 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

35. 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.

    Jane Marquard
    Member

    
    
    

    Attachment A

    LIST OF DOCUMENTS

    Provided to Department:

    • Confirmation of employment letter by Apptide Technologies Company Ltd confirming the PVA was employed since 15 January 2020.
    • Scanned copy of the PVA’s Diplomatic Visa (Subclass 995).
    • Westpac bank statement in the name of Beatrice Ojoko Igba issued on 1 December 2021,

    showing a closing balance of $23,923.89.

    • Federal Capital Territory of Abuja – Birth Certificate – Victor Chimankpa Igba.
    • Scanned copy of the PVA’s Federal Republic of Nigeria Passport.
    • Confirmation booking for a medical appointment on 14 February 2022.
    • COVID-19 vaccine certificate in the name of Victor Chimankpa Igba.
    • Statutory Declaration of Beatrice Igba dated 6 March 2022.
    • Letter from Canberra Hospital dated 8 December 2021 stating the PVA has no outstanding accounts with the hospital.

    Provided to Tribunal:

    • Statutory Declaration dated 21 November 2023.
    • Year 12 Certificate.
    • Record of Results and Certificates Canberra Institute of Technology.
    • Employment documents Apptide Technologies.
    • Approval for leave Apptide Technologies.
    • Reference letter from Dominion City Church.
    • Membership Certificate, Dominion City Church.
    • Letter from Odu Foods.
    • Power of Attorney for landed property ‘Ugiri Land’.
    • Itinerary.
    • Representative’s submissions.
    • Review applicant’s affidavit of marriage.
    • Review applicant’s Citizenship Certificate.
    • Passports and citizenship certificates of review applicant’s children and husband.
    • Visa applicant’s birth certificate and passport.
    • Visa applicant’s curriculum vitae.
    • Visa applicant’s savings account bank account.