JUMA (Migration)

[2020] AATA 4573

JUMA (Migration) [2020] AATA 4573 (2 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Angela Debra Maringu JUMA

VISA APPLICANT:  Ms Yvonne Laurel Nabwire JUMA

CASE NUMBER:  1900322

HOME AFFAIRS REFERENCE(S):          BCC2018/4571585

MEMBER:Nathan Goetz

DATE:2 November 2020

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 02 November 2020 at 11:19am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – family members in home country not listed on application – not currently working because of COVID-19 pandemic – previous compliant travel to Australia and another country – poor preparation of application by agent – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 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 is a 51-year-old female citizen of Kenya. She applied for the visa on 18 October 2018 outside of Australia.

3. 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.

4. 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.

5. On 26 November 2018 the delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211.

6. On 7 January 2019 the review applicant applied to the Tribunal for a review of the refusal decision. The review applicant is the visa applicant’s half-sister, a citizen of Australia and the sponsor for this visa. As she is a sponsor who is a relative of the visa applicant, the review applicant can seek review of the refusal decision.

7. On 11 September 2020 the review applicant appeared by telephone at the Tribunal to give evidence and present arguments. The Tribunal received oral evidence from the visa applicant by telephone from Kenya. The review applicant was represented at the Tribunal by registered migration agent 0959773 Mr Nino Sekyere-Boakye who appeared by telephone.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   Visitor Visa application form

9. The Tribunal was told that the visitor visa application form was completed by the migration agent. He did so on instructions from the review applicant who provided the information. The review applicant told the Tribunal that she provided the migration agent that she knew, and that the rest of the information was provided by through the review applicant to the migration agent by the visa applicant.

10. The visitor visa application form, the visa applicant identifies as a 51-year-old female citizen of Kenya named Yvonne JUMA. She is ‘travelling to visit (her) sister and her (sister’s) family in Australia. She will use the opportunity to tour several places in Australia.’ She lives on Muhoho Street in Nairobi City, Kenya. In the form, she was asked whether she had any members of her family unit not travelling to Australia who are not Australian citizens or Australian permanent resident. She answered ‘no’. She planned to enter Australia on more than one occasion and planned to stay in Australia up to 12 months. She applied for a 12-month visa because she did not want to go through an application process because she wanted to travel to Australia ‘within the next year’. She will not undertake a course of study in Australia. She was in contact with family in Australia. Her family in Australia are her sister Angela JUMA, her sister’s husband Dexter KNUDSON and her niece and nephew. Ms Angela JUMA is the review applicant for this decision.

11. The visa application form detailed the visa applicant’s employment. She was employed at ‘Romas Salon’. She started at this employer on 11 September 2014. The address for this employer is Kenahi Street, Nairobi. Her stay in Australia will be funded by the review applicant and the review applicant’s husband. The form details that the vis applicant had visited Australia previously. She had a previous visa application refused because the Department was not satisfied that there were sufficient ties Kenya, but she detailed in her explanation that she had ‘my parents, siblings, land, a job and other commitments in Kenya.’ There was ‘no incentive for (me) to overstay my visa in Australia.’

12. Included in the visa application form was a letter dated 4 October 2016 from Rose KAVOGA who was identified as the Manager of ‘Romas Salon.’ The letter details that the visa applicant worked at ‘Romans Salon’ for the last 4 years. The letter noted the visa applicant’s qualities as hairdresser and that the visa applicant had requested a 1-year visit to Australia and that the visa applicant would return back to work after that time.

13. There was also an account statement dated 4 September 2018 for a loan account through ‘Liberty’. The borrower is Mr Dexter KNUDSON, Kenya Birth Certificates for the visa applicant and the review applicant, several documents relating property and company dealings in Zimbabwe.

14. When the review applicant was invited to appear at the Tribunal hearing, the Tribunal invited the review applicant to provide information in response to the following questions:

    You are invited to provide the following information to the Tribunal:

    Full name and date of birth, dates of arrival of any other of your close relatives (including parents, brother, sister, child, uncle, aunt, cousin, niece or nephew) who have come to or visited Australia within the past 10 years.

    Full name and date of birth, dates of arrival / visit of any other close relatives you have sponsored or invited to visit Australia within the past 10 years.

    Updated information about the visa applicant’s employment and financial situation in their home country.

    Any other information relevant to the visa applicant’s activities or commitments or relationships in their home country that would encourage them to return at the end of a visit.

    Any information relating to any previous visa held by, or visa application made by, the visa applicant.

    Any information concerning any other travel by the visa applicant outside their present country of residence.

15. The hearing invitation directed that this information needed to be provided to the Tribunal at least 7 days prior to the Tribunal hearing. The hearing invitation also included a ‘Response to hearing invitation form’ which the review applicant was asked to complete and return to the Tribunal.

16. The ‘Response to hearing invitation’ form was returned to the Tribunal. The review applicant asked the Tribunal to take oral evidence from her husband Mr Dexter KNUDSON. The Tribunal advised the review applicant that a written statement needed to be provided by Mr KNUDSON before the Tribunal would consider any request for him to give oral evidence at the Tribunal hearing. A written statement was subsequently provided to the Tribunal by Mr KNUDSON. The statement was received by the Tribunal on 8 September 2020, when other documents were also provided.

17. The statement by Mr KNUDSON noted that the visa applicant stayed with him and the review applicant on her last trip to Australia. He explained that during the last trip to Australia, the review applicant needed help taking care of his wife who had recently given birth. They applied for another visitor visa while the visa applicant was onshore. This was refused and the visa applicant left. Mr KNUDSON will ensure that the visa applicant returns to Kenya at the end of her visit to Australia. He and his wife were prepared to deposit money to guarantee her return. Given the contents of the statement, the Tribunal did not think it necessary to take oral evidence from Mr KNUDSON. The Tribunal accepts that Mr KNUDSON would give oral evidence consistent with his written statement.

18. Also provided was a letter dated 7 September 2020 from Rose KAVOGA, who identified as the Manager of ‘Romas Salon’. The letter declared that the visa applicant worked for that organisation for the last 5 years at ‘The Romans Salon.’ It noted that the visa applicant travelled in October 2019 and returned to work after 2 weeks after she returned to Kenya in February 2020. The letter described that in March 2020 the COVID-19 pandemic the organisation had to ‘lay off some staff…since a lot of clients were hardly coming for their services anymore.’ Until ‘the situation returns to normal, most of (their) staff will not be able to come to work.’

19. An examination report was provided for Clement WANJALA dated 13 July 2007 signed by Dr MWANGO and a slip from the Aga Khan University Hospital in Nairobi dated 7 February 2008 for Clement JUMA concerning a left hip joint and left femur.

20. Three pages titled ‘Evidence of Travel’ which appeared to be the stamps the visa applicant’s passport.

21. On 10 September 2020 additional documents were received. There were two payslips for Mr Dexter KNUDSON and a scanned upside down four-page written submission from the migration agent. The submission was dated 4 September 2020 and put forward the following:

22. The visa applicant is a ‘full time professional hair stylist who has lived and worked in Kenya almost all her entire life.’

23. The visa applicant travelled to Australia in 2016 on a tourist visa and departed within her grant period. She has ‘travelled to Europe on several occasions’ on ‘Schengestaten visas.’

24. The visa applicant’s motivation for visiting Australia is to visit her sister and family. She intends to also visit places of interest in New South Wales, Victoria and Queensland with her sister and family.

25. The visa applicant has ‘no intention or motivation to either overstay her visa period or breach her visa conditions.’ She has ‘lived in Kenya almost all her entire life’ and ‘has no desire to live outside Kenya over a long period of time’.

26. She has ‘almost all her siblings, parents, nephews, nieces and friends residing in Kenya.’ She is ‘responsible for her parent’s welfare in Kenya.’

27. The visa applicant has a full-time job as a hair stylist. Her employer has given her permission to travel on several occasions. She also has private clients who come to her for hair styling. She has ‘a good and reliable source of income to return to.’

28. The review applicant as sponsor, together with her husband Mr KNUDSON, are good and responsible people who have a ‘proven record’ to guarantee that the vis applicant will not overstay her visa.

29. In the early hours of 11 September 2020, the review applicant provided the Tribunal five Kenya identity documents, and two birth certificates. The email reads ‘please find attached some ID’s of some of the review applicant’s relatives in Kenya’.

    Tribunal hearing on 11 September 2020

30. The Tribunal was very concerned about the way the review application was prepared. It appeared to the Tribunal that the review applicant had not been served very well in the preparation of the visa application, nor the review application. A significant amount of time at the Tribunal hearing was wasted clarifying evidence that, had this matter been prepared properly, would have probably meant that the Tribunal would have remitted this matter to the Department for reconsideration without the need for a Tribunal hearing.

31. The Tribunal had no idea of the relevance of all the documentation concerning Zimbabwe property and transactions, which were numerous. At the Tribunal hearing, the migration agent took responsibility for this documentation. He provided it in error, and it was not related to applicants.

32. The Tribunal wondered why the visa applicant had declared that she had declared that she had no non-accompanying members of her family unit travelling with her to Australia in the form, but then referred to care of her parents and presence of her siblings in Kenya as an incentive for her to return to Kenya. This suggested to the Tribunal that the visa applicant sought to hide the identification of her siblings because they may have had adverse migration history and was worried it would suggest that the visa applicant herself would similarly not comply with visa conditions. The Tribunal was told that the visitor visa application form was completed by the migration agent with information provided through the review applicant. There was no adequate explanation about why the form failed to detail the non-accompanying members of the family unit other than that the review applicant was not asked about this information by the migration agent.

33. This was not remedied by the migration agent providing five Kenyan identity cards, and two Kenyan birth certificates in the early hours prior to the Tribunal hearing and providing no information about who these people were, apart from ‘relatives.’ As the Tribunal told the migration agent, being provided documentation and being told by the migration to figure it out was not helpful to the Tribunal and not helpful to the applicants. The Tribunal hearing was stood down to allow the migration agent to provide specific information about who the visa applicant’s family were in Kenya that would act as an incentive for the visa applicant to return to Kenya at the end of her proposed visit to Australia.

34. The Tribunal was then provided the following in writing:

Name	DOB	Country of Birth	Current place of residence	Country of Citizenship
Father	Clement Wanjala Juma	15/10/1946	Kenya	Kenya	Kenya
Mother	Mary Juma	19/9/1952	Kenya	Kenya	Kenya
Applicant	Yvonne Laurel Juma	6/5/1969	Kenya	Kenya
Sister	Corrine Juma	22/6/1971	Kenya	Kenya	Kenya
Sister	Iris Juma	16/7/1972	Kenya	Kenya	Kenya
Sister	Angela Debra Maringu Juma	25/9/1979	Kenya	Australia	Australian
Sister	Sharon Juma-Madu	8/12/1974	Kenya	Australia	Kenya
Sister	Brigitte McKitrick	2/6/1981	Kenya	Ireland	Partner Visa

1. The Tribunal was also concerned that the migration agent had submitted that the visa applicant had ‘travelled to Europe on many occasions’ and submitted what looked like passport pages with stamps, but was unable to tell the Tribunal about the specifics of the travel when asked. To the Tribunal’s way of thinking, if an agent wished to put demonstrated prior travel to and from other countries as evidence of a willingness to return to the visa applicant’s home country, then a submission detailing the specific travel and identifying the travel stamps would have been a pretty basic thing to do in a submission, instead of making a broad submission that there had been ‘previous travel.’ It is, after all, the duty of migration agent to assist the Tribunal: see 2.2 and 2.3 of the COVID-19 Special Measures Practice Direction – Migration and Refugee Division. The failure to detail previous travel with specificity was further frustrating when the Tribunal specifically invited this information to be provided when the review applicant was invited to appear at the Tribunal hearing.

2. After the matter was stood down, the migration agent provided the visa applicant’s travel history in writing as follows:

   Holland:  From 20/10/2014 to 10/01/2015.

   Australia:  from 11/10/2016 to 30/03/2017.

   Holland: from 20/11/2019 to 12/02/2020.

3. The Tribunal was also concerned about the migration agent’s written submission of 4 September 2020 about the visa applicant’s employment in Kenya where he wrote that the visa applicant was employed full-time as a hairstylist and had a ‘good and reliable source of income’ in light of the oral evidence that the visa applicant gave to the Tribunal hearing as discussed below.

4. Regarding the visa applicant’s employment situation, she told the Tribunal that she was not presently working. The last time she worked was when she returned to Kenya in February 2020. She worked briefly. She was told that when things return to normal after the COVID-19 pandemic, she would be able to go to work. The Tribunal could not understand how a submission could be put forward by the migration agent that the visa applicant was employed full-time and in receipt of regular income when she had not been working since February 2020. It was clear that the migration agent had put forward this submission without any critical interrogation about whether the visa applicant was still employed as she claimed when the visa application was made in October 2018.

5. Further, the submission that the applicant was employed full-time was curious given the visa applicant’s evidence about her previous work as a hairdresser. Her evidence to the Tribunal was that she had no payslips to confirm her previous employment because she is not provided payslips. She is paid by commission for work done. She is paid in cash. She receives 30% of the fee paid by the client, and the rest is paid to the salon.

6. The Tribunal was also concerned about the inconsistent evidence about when the visa applicant started working for the salon and was also concerned by the inconsistent evidence provided about the name of the business. The Tribunal made the visa applicant aware of the inconsistent evidence. The visa applicant said that she worked at ‘Romans Salon’ and the Tribunal noted that the body of the letters referred to the business as ‘Roman’s Salon’. The visa applicant told the Tribunal that she started working there in September 2014. The Tribunal pointed out that the first employment letter was dated 2016 and referred to the visa applicant working at that place for the past 4 years, meaning that the visa applicant would have been working there since 2012. The Tribunal also noted the recent employment letter dated 2020 referred to the visa applicant working at the salon for 5 years, meaning that she worked there since 2015. The Tribunal asked the visa applicant to explain the inconsistency. The visa applicant said this was a mistake. She could see the difference in the dates. She started working in 2014.

7. The visa applicant told the Tribunal that she has no plan to study while in Australia, and she will not be looking for employment. She owns no property in Kenya and lives with her parents. She is single. It has not been arranged for her to come to Australia for a relationship. She has never been harmed in Kenya. She was asked whether she had any fear of returning to Kenya at the end of her proposed trip to Australia because of her race, religion, membership of any group, sex, sexuality or political opinion.

8. She told the Tribunal that she travelled to the Netherlands to visit family. The Tribunal asked how her family came to live in the Netherlands. She told the Tribunal that it was through marriage.

9. The review applicant told the Tribunal about her sister. She was unsure about whether her sister was presently in a relationship, but she has been in one previously. She is close to her sister and speaks to her about once per week. The visa applicant has never expressed any fear of harm in Kenya on account of her race, religion, membership of any group, political opinion, sex, sexuality or any other reason, although the review applicant said that her sister would probably not tell her about these things. The review applicant said that her sister was not involved in politics in Kenya and had experienced no problems in Kenya. She was very quiet.

1. The visa applicant said her sister applied for a 12-month vis to come to Australia because she wished to make it as long as possible. She noted that her sister previously travelled to Australia on a visitor visa that had been granted for a 6 month period, although her sister had applied for a 12 month period.

2. She told the Tribunal that her sister lives with their parents in Kenya and will live with her while she is in Australia. The review applicant will meet all the living expenses. The review applicant told the Tribunal that she has two children aged 10 years and 3 years. Her sister will help her with the care of her children. The review applicant said that she was not presently working. Her husband works for Western Sydney University. She also confirmed that she runs a YouTube channel and she and her husband run a Christian Ministry in Australia. She noted that Kenya is a predominantly Christian country, but there are Hindus and Muslims there as well. Christians are not persecuted in Kenya.

3. The review applicant was asked whether she would be aware if her sister was planning on travelling to Australia and lodge a visa application, such as a protection visa or partner visa. She said she would be aware if that was the case. The review applicant was asked whether she or her husband made arrangements for her sister to meet someone in Australia for a relationship. She said no arrangements had been made. The review applicant said that she would be able to provide a $5,000 security to the Department to secure the visa.

   FINDINGS AND REASONS

4. For the following reasons, the Tribunal has determined that the appropriate course is to remit the matter to the Tribunal for reconsideration.

5. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

6. 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)).

7. 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.

8. The Tribunal must also consider all other relevant matters (cl.600.211(c)).

9. The Tribunal found the review applicant and the visa applicant to be credible in their oral evidence. Concerns that the Tribunal had about the credibility of certain aspects of the material can be attributed as follows:

   What is the nature of the visa applicant’s employment in Kenya?

10. The Tribunal is satisfied that the visa applicant works on a commission basis as a hairdresser. She is paid in cash. The author of the employment letter prepared a letter in English when it was clearly not the author’s native tongue. The migration agent should have obtained documents in the visa applicant’s native tongue and had them translated into English through a NAATI accredited translator. This would have avoid the potential concern about whether the visa applicant worked for ‘Roma’s’ or ‘Roman’s’ in Nairobi. The Tribunal is also satisfied that the visa applicant works on a commission basis, her employment is not structured in the way of full-time direct employment. Given that this employment appears fluid and like a contractor, it is for that reason that there may be a discrepancy between the evidence provided about when the visa applicant started working at ‘Roma’s Salon.’ Again, this probably would have been assisted by the migration agent ensuring that the employment letters were completed in the native tongue of the author and then translated into English in Australia.

11. Further, any assertion made that the applicant continued to work or was presently in receipt of regular income (as stated in the written submission by the migration agent) can be attributed to the migration agent failing to properly take instructions from the visa applicant about her present circumstances. The Tribunal makes it clear that it does not believe that the migration agent was deliberately trying to mislead the Tribunal. The Tribunal believes that the written submission came from the migration agent being slack in his taking instructions, and he just repeated what was contained in the earlier visa application, which was very unhelpful. If the migration agent had bothered to look at the last letter from the manager of ‘Roma’s Salon’ it would have alerted him to the fact that there may be a suggestion that the visa applicant was not presently working. The Tribunal would have received greater assistance by the visa applicant providing a statutory declaration from Kenya and translated into English in Australia about her present circumstances rather than the written submission from the migration agent. Written submissions are not evidence. They should be crafted to address the evidence.

12. In any event, the Tribunal is satisfied that the visa applicant was previously working in Kenya and has not done so since February 2020 due to the COVID-19 pandemic. The Tribunal is satisfied that her ability to return to work at the salon may present itself once the COVID-19 pandemic starts to be managed in Kenya. The fact that the visa applicant is not presently employed or conducting work by commission in Kenya presently may be act as an incentive for her to remain in Australia, but each case must be judged on its merits. The fact that a person is not presently employed does not necessary mean that this person is coming to Australia to work or will not return to their home country at the end of their proposed visit.

13. The Tribunal notes the visa applicant’s previous migration history to both the Netherlands and Australia. Had the visa applicant intended to leave Kenya permanently, it would be reasonable to expect that she would have remained in the Netherlands or Australia during her previous visits. The Tribunal also notes that the visa applicant applied during her last visit to Australia to lift the 8503-restriction applying for another visa during her stay. This was refused by the Department and the visa applicant departed while she remained on her visitor visa. She has demonstrated a history of compliance with Australian migration laws.

14. The visa applicant is a woman aged in her middle years, who has parents and most of her siblings in Kenya. The review applicant has no adverse migration history to suggest that the family have reasons not to return to Kenya on account on race, religion, nationality, membership of a particular social group or political opinion.  Any concerns that the Department may have issuing this visa could adequately be addressed by the imposition of a security.

    CONCLUSION

15. 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

16. 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