Kadiongo (Migration)

[2019] AATA 1243

Kadiongo (Migration) [2019] AATA 1243 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Blanchard Maole Kadiongo

VISA APPLICANT:  Mr Leonard N'Sapu Kadiongo

CASE NUMBER:  1711114

HOME AFFAIRS REFERENCE(S):           BCC2017/1551368

MEMBER:Christine Kannis

DATE:15 January 2019

PLACE OF DECISION:  Perth

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

Statement made on 15 January 2019 at 6:25am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – does not genuinely intend to stay in Australia temporarily – lack of evidence of financial stability – lack of evidence of strong family ties to home country – failed to appear at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 362B
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, conditions 8101, 8201

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 18 May 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 30 April 2017. 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 (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 intends to stay temporarily in Australia.  

5. On 13 December 2018 the Tribunal sent the review applicant an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 14 January 2019 at 9.00 am. The letter informed the review applicant that if he was unable to attend the hearing then he should advise the Tribunal as soon as possible. The letter advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal.

6. The applicant did not respond to the Invitation to Attend a Hearing.

7. On 7 January 2019 the Tribunal sent the review applicant a SMS hearing reminder to the phone number provided in the Application for review. 

8. A Case Note entered on 9 January 2019 recorded that the review applicant contacted the Tribunal Registry and enquired about the SMS hearing reminder. He advised that since lodging the Application for review he had changed his residential and email addresses and had not received the Invitation to Attend a Hearing. The Tribunal Registry asked him to provide his updated contact details as soon as possible and reminded him of the date and time of the scheduled hearing. The review applicant provided an updated email address on 9 January 2019 and requested that all correspondence be sent that email address.

9. A Case Note entered on 9 January 2019 recorded a telephone call from the review applicant as follows:

   t/f PRA: wanted to confirm I had received his new contact details in writing following telephone conversation with colleague. I informed I had not as our electronic database could take some time. He asked for all previous correspondence that had been sent to him and I informed him that only an acknowledgement letter and invitation to attend a hearing had been sent and I could resend to him. He acknowledged receipt of same and I also received his correspondence in the interim. I updated and confirmed all his details while still on the phone. He asked if he needed to return the hearing response form and I advised him that due to short notice if he didn't have anything to add such as witnessed or any change in details etc he could attend on the day.

10. On 11 January 2019 the Tribunal sent the review applicant a SMS hearing reminder to the phone number provided in the Application for review. 

11. The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.

12. The Tribunal Registry contacted the review applicant at 9.15 am on 14 January 2019 and the following Case Note was entered:

Called PRA at 9:15 as he had not attended the hearing scheduled for 9:00am. He advised he would not be able to attend the hearing. I contacted the Member and advised him unless he attended the hearing either in person or via telephone, a decision would be made on the papers. He confirmed that he was unable to attend in person or via telephone and that he accepted a decision would be made on the papers.

1. The Tribunal is satisfied that the review applicant has been given an opportunity to attend the hearing.

2. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under section 362B of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. The visa applicant is a national of the Democratic Republic of the Congo. The visa applicant seeks the visa for the purpose of a family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

6. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose for which the visa is granted, 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)). In this case, the visa applicant has never held a visa to Australia and there are no considerations relevant to 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.600.211(3)):

   ·8101 – must not work in Australia

   ·8201 – must not engage in study or training in Australia for more than 3 months

8. There is no information before the Tribunal to suggest that the visa applicant would engage in any work or study or training in Australia.  Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa conditions 8101 and 8201. 

9. The Tribunal had regard to a Statutory Declaration made by the review applicant dated 23 May 2017 in which he provided the following information:

   ·The visa applicant is his brother.

   ·The visa applicant has a stable professional role as the Administrative Director of Human Resources of the largest mining company in the Congo Democratic, Gecamines, and he has the financial capacity to support himself during a visit to Australia.

   ·The visa applicant is an essential part of the daily operations of Gecamines.

   ·He will financially support the visa applicant during a visit to Australia.

   ·He lives in a five bedroom home in City Beach which is large enough to accommodate the visa applicant during a visit to Australia.

   ·The visa applicant has two minor children living in the Congo Democratic who will not be visiting Australia with him and who are his responsibility.

   ·The visa applicant is a property owner in Lubumbashi.

   ·One of the reasons for the visa applicant visiting Australia is to provide him with emotional and spiritual support on the one year anniversary of their mother’s death.

10. In a separate Statutory Declaration made by the review applicant dated 23 May 2017 he said a visit from the visa applicant would be comforting to his children because they are lost in confusion with the situation. No clarification of this statement was provided.

11. The delegate referred to the visa applicant’s Banque Commerciale Du Congo bank statements showing he had adequate funds to meet the cost of his travel but said there was no strong link between his employment and the source of funds. The delegate concluded that there was insufficient information to support the visa applicant’s financial stability or to support that there was an economic or financial incentive to return to his country.  In one of his Statutory Declarations the review applicant said the visa applicant’s salary was reflected in the bank statements as “Virement D’Ordre De Gecamines-Remuneration”. The Tribunal identified two credit transactions which were described as remuneration and noted other significant credit transactions from other sources.

12. The Tribunal noted that a TMB Trust Merchant Bank S.A statement in the visa applicant’s name was provided. The statement showed one cash deposit was made on 8 May 2017 and revealed no other transactions for the period from 1 February 2017 to 8 May 2017.

13. Documents which appear to be from La General Des Carrieres et des Mines Gecamines were provided however they were in the French language and certified translated copies were not provided. Accordingly the Tribunal was not able to take into account the information provided in those documents.

14. On 9 January 2019 the review applicant advised the Tribunal Registry that since lodging the Application for review he had changed his residential address. The Tribunal is not aware of the review applicant’s current accommodation and family circumstances and has no information regarding where the visa applicant would stay if he were to travel to Australia.

15. In one of the Statutory Declarations the review applicant said the visa applicant has two minor children who are his responsibility. The Tribunal noted that in the Application for a Visitor Short Stay Visa the visa applicant indicated that he has a 20 year old daughter. The visa applicant did not indicate that he had any other children not travelling to Australia.

16. In one of the Statutory Declarations the review applicant said the visa applicant is a property owner in Lubumbashi. No evidence of property ownership was provided.

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

18. Taking into account all of the evidence before it, including the lack of evidence that the visa applicant has strong financial or family ties to the Democratic Republic of the Congo, 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

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

    Christine Kannis
    Member