Jeffery (Migration)

[2024] AATA 297

Jeffery (Migration) [2024] AATA 297 (14 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Fatimata Jeffery

VISA APPLICANT:  Mrs Djeneba Tall Sanogo

CASE NUMBER:  2300860

HOME AFFAIRS REFERENCE:               BCC2022/1849334

MEMBER:Nicole Burns

DATE:14 February 2024

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 14 February 2024 at 3:56pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – visiting sister and children – genuine temporary entrant and compliance with conditions – incentives to depart or remain – executive employment, house, school-aged children and extended family in home country – length of employment, accrued leave and financial capacity to pay for trip – review applicant and children only family members in Australia – intention not to jeopardise future visits by family members – decision under review remitted 

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, conditions 8101, 8201, 8503, 8531

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 19 November 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 applicants are sisters.  The visa applicant applied for the visa on 24 May 2022. 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.

5. The review applicant appeared before the Tribunal on 14 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

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 seeks the visa for the purposes of visiting her sister and her sister’s children in Australia. 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)).  As the visa applicant has not visited Australia before, this subclause does not apply.

10. 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(2)):

    ·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.

11. According to the material before the Department and Tribunal, the visa applicant is a 45-year-old married woman from Ouagadougou, Burkina Faso.  She works for the Agricultural Bank of Faso, as an account manager since February 2019 and more recently (since early this year) as a bank executive.  (Her husband works as a civil engineer).  Evidence has been provided to the Department and Tribunal confirming as such, including translated letters from her employer confirming her employment and leave entitlements, and a selection of her payslips.  At hearing the review applicant said her sister – who plans to visit Australia for around a month – has accrued leave and has the financial capacity to pay for the trip.  Based on the evidence provided the Tribunal accepts that is the case and accepts that he visa applicant does not intend to work or study or train whilst in Australia.  It accepts she will abide by the relevant visa conditions in these respects if the visitor visa is granted.

12. The Tribunal has also considered all other relevant matters (cl 600.211(c)).  In doing so it has considered 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 Burkina Faso.

13. In her oral evidence to the Tribunal the review applicant described her sister’s circumstances  as follows.  She said she lives in a house she owns with her husband and her two youngest children aged 11 and around 17, who both attend school.  Her eldest daughter completed high school last year and has moved to Canada to study, holding a university scholarship and four-year student visa (the review applicant provided a translated copy of the Canadian visa grant to the Tribunal).  The visa applicant’s other nine siblings (and their families) all live in Burkina Faso, whom she is close to.  She has no other relatives in Australia, apart from the review applicant and her two sons.

14. The Tribunal found the review applicant a credible witness at hearing and accepts her evidence in this regard.  It finds these constitute significant family ties that would likely act as a strong incentive for the visa applicant to return to Burkina Faso before the end of the permitted stay, particularly the presence of her still dependent children there, as well as several extended family members. 

15. The Tribunal is also satisfied the visa applicant’s employment ties – as a bank executive – would act as a strong incentive for her to return to Burkina Faso before the end of any visitor visa that may be granted. 

16. The Tribunal notes in the delegate’s decision record they considered the visa applicant’s employment with the Agricultural Bank of Faso did not constitute a strong incentive to return at the end of the proposed stay in Australia because it was not long term.  At the time of the Tribunal’s decision she has now been employed with that bank for around five years, which is a reasonable amount of time, and recently promoted to executive level.  The Tribunal also notes evidence was provided to the Department indicating she worked as a customer assistant for many years with another bank (Ecobank) prior, from October 2008.  At hearing the review applicant gave evidence that the visa applicant studied accounting at university, which the Tribunal accepts.  It considers such a career trajectory would act as an incentive for her to return. 

17. At hearing the review applicant told the Tribunal she migrated to Australia in 1999, married to an Australian man whom she met whilst working in an Australian owned mine in Ghana.  They have since divorced and she lives with a friend in rental accommodation in Melbourne.  Her two sons, now adults, are studying at university in Newcastle and have part time jobs.  Apart from during COVID, she has visited her sister (and other relatives) in Burkina Faso at least once a year. 

18. The review applicant emphasised that she wants her sister to visit to spend time with her and her sons and to see her life in Australia.  She said her sister is not interested in staying, given her work and family commitments at home.  She also speaks French and if she wanted to migrate away from Burkina Faso, Canada would be a better option given such language considerations and the fact her eldest daughter (and her parents-in-laws) presently reside there. 

19. The Tribunal accepts the review applicant’s assertions in this regard and is of the view the review applicant will seek to ensure her sister abides by the conditions attached to the visitor visa if granted, so as not to jeopardise future visits by her family members who remain in Burkina Faso. 

20. 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

21. 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.

    Nicole Burns
    Member