Jalloh (Migration)

[2017] AATA 2305

Jalloh (Migration) [2017] AATA 2305 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Adama Dian Balde Jalloh

VISA APPLICANT:  Mr Souleymane Balde

CASE NUMBER:  1705040

DIBP REFERENCE(S):  BCC2017/538517

MEMBER:Angela Cranston

DATE:9 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 November 2017 at 4:11pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Not a genuine temporary entrant – Applicant’s age and single status – Guinea’s country information – Presence of applicant’s family in Australia – Economic opportunities in Australia

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994¸ Schedule 2, cl 600.211, cl 600.221, cl 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 Immigration on 14 March 2017 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 applied for the visa on 8 February 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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. In his application, the applicant stated that he wanted to visit Australia for tourism for up to 3 months, that he was born in 1989, that he had never married, that his mother and father were in Guinea, and that he had 8 siblings in Guinea. He also stated he was a student and that he had previously travelled to Senegal and Ghana.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 for the following reason:

   you have declared you are a 27-year-old unmarried male Guinea National. You wish to travel to Australia to visit your sister for a proposed period of approximately three months. You have stated on your application form that you completed an English course on 10/2/2017 therefore are currently unemployed.

   I have considered your personal circumstances that may encourage you to return to your home country at the end of the proposed visit and those that might encourage you to remain in Australia.

   I have considered the information you have provided on your application form, noting in particular:

   You presented no acceptable evidence of previous travel to Australia or to countries comparable to Australia and compliance with their visa conditions

   Your current employment status

   You have presented no acceptable evidence of assets or liabilities in your home country that would encourage your return

   You have declared that your proposed stay in Australia will be supported by your sister. This in itself demonstrates that your financial resources are limited and you may seek to remain in Australia where your personal financial circumstances could be greatly improved. Whilst offers of support from family and friends in Australia are taken into consideration and weight can be placed on this fact, the onus is on the applicant to provide evidence to show that they meet the requirements for a visa in their own right.

   On balance I am not satisfied your personal circumstances support your claims that you intend a genuine temporary visit to Australia.

6. The review applicant applied for review and appeared before the Tribunal on 7 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Fulah and English languages.

7. The Tribunal talked about the conditions that would be imposed on any tourist visa which would include no work and no study. It also indicated it could also impose adequate insurance arrangements, no entitlement to a substantive visa other than a protection visa while in Australia and a condition stating that an applicant must not remain in Australia after any permitted stay.

8. The review applicant stated she understood that the Department was concerned that the applicant would not return because he had not been working but that the situation had changed since the applicant now worked. She stated when the applicant applied he had been in Ghana studying but he was now back in Guinea and working as an engineer supervisor at NTS and his brother was also working in metal imports as a commercial agent.

9. The review applicant stated that her mother and father were in Guinea but had Australian tourist visas which were valid until March 2018. She stated they were waiting for the applicant’s visa so that he and his brother could travel with them.

10. The Tribunal put to her that it would also take into account the situation in Guinea. It put to her that the BBC country profile for Guinea[1] stated that Guinea’s mineral wealth made it potentially one of Africa’s richest countries but its people were among the poorest in West Africa. It also stated that the 2010 election ushered in civilian rule but lead to violent ethnic clashes between the President’s Malinke ethnic group and the Peul ethnic group and these may be reasons why the applicant would not return.  She stated what the BBC said was true but the applicant would return because he only wanted to visit her and her children. The Tribunal put to her that if her mother and father were also travelling to Australia a very large part of the applicant’s family would be in Australia at the same time. She stated a very large part of her family would remain in Guinea. She stated the applicant only really had her in Australia and he would not work and would return to Guinea.

    [1] accessed 9 November 2017

11. The adviser stated that the review applicant’s mother had come and returned to Guinea. He also stated the review applicant had marital issues and needed her family for support.

12. The Tribunal then spoke to the applicant. He stated he would return to Guinea because of his important job. He also stated he would return because of his parents and family.

13. The review applicant stated that she wanted the applicant to visit her and her children and she guaranteed he would return to Guinea before his visa expired. She stated she would soon divorce and she had no family in Australia.

    Movement records

14. Kadiatou Diallo, the applicant’s mother arrived in Australia on 16 February 2016 and departed on 12 May 2016. She was also granted a tourist visa on 14 March 2017 that will cease on 14 March 2018.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant. This is a purpose for which a visa in the tourist stream may be granted: cl.600.221 and cl.600.222.

18. 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)).

19. 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 and

    ·conditions 8501 (health insurance), 8503 (no further stay) and 8558 (Cannot Stay more than 12 months in any 18 month period) may be imposed.

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

21. The Tribunal has had regard to the visa applicant's circumstances. The applicant is aged 28 and unmarried. He has recently obtained work in Guinea.

22. The Tribunal accepts that the visa applicant has strong personal ties to Guinea in that he has lived there all his life (with the exception of a short stay in Ghana), and his siblings and parents also live in Guinea. He also has his work.

23. Although the applicant has personal ties as well as his work, the Tribunal is not satisfied that these ties will encourage him to return after an approved stay. In reaching this conclusion, the Tribunal has considered that the applicant’s mother has previously been to Australia and has returned within the validity of her visa and intends to again travel to Australia with her husband at the same time that the applicant intends to travel. While the Tribunal notes the applicant’s mother’s exemplary travel, the Tribunal considers that the applicant, who is young and unmarried, is not in the same position as his mother who the Tribunal accepts, is, at her stage in life, settled in Guinea.  While the review applicant has stated that the applicant could not stay away from Guinea because of his work and familial ties, the Tribunal has concerns that the applicant will attempt to change his status once he is in Australia so that he can remain. This is based not only on the applicant’s age and single status but also country information states that Guinea’s people are among the poorest in West Africa and the 2010 election ushered in civilian rule but led to violent ethnic clashes between the Malinke ethnic group and the Peul ethnic group. Although the review applicant has stated that this does not affect the applicant, the Tribunal remains concerned that the applicant’s young, single status, combined with the presence of the applicant's family in Australia means that the applicant will not depart Australia at the end of any approved stay. In addition, although the review applicant has stated that the applicant has recently acquired work and therefore needs to return to Guinea, the Tribunal is not convinced that would serve as an inducement given the short time that he has been employed and the economic opportunities in Australia.

24. These concerns lead the Tribunal to conclude that the applicant does not genuinely intend to stay temporarily in Australia.

25. The Tribunal acknowledges that the review applicant and her children want to see the applicant. While the Tribunal has sympathy for the review applicant, the Tribunal also has significant concerns that the applicant will seek to remain in Australia and will seek to change his status here.

26. 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

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

    Angela Cranston
    Member