Lugonvu (Migration)

[2021] AATA 2463

Lugonvu (Migration) [2021] AATA 2463 (19 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Edith Lugonvu

VISA APPLICANT:  Ms Phiona Namusoke

CASE NUMBER:  1820244

HOME AFFAIRS REFERENCE(S):          BCC/2018/1941604

MEMBER:Scott Clarey

DATE:19 April 2021

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 19 April 2021 at 4:52pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – the visa applicant genuinely intends to stay temporarily in Australia– family commitment in home country – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221,600.222

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 Home Affairs on 21 May 2018 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 applied for the visa on 3 May 2018. 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 because they were not satisfied that the applicant genuinely intended to visit Australia temporarily.

5. The review applicant appeared before Tribunal via teleconference on 13 April 2021 to give evidence and present arguments.

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. At the hearing, the Tribunal explained to the review applicant the requirements of cl.600.211 and the matters relevant to its assessment. The Tribunal told her that the primary issue for consideration was whether the visa applicant genuinely intends to visit Australia temporarily.

9. In assessing the issues, the Tribunal has considered the documentary evidence submitted with the application and the limited additional documentary evidence that has been submitted to the Tribunal. The Tribunal has also had the benefit of the review applicant’s oral evidence. The Tribunal found the review applicant’s oral evidence to be candid and credible.

10. In the present case, the visa applicant seeks the visa for the purposes of tourism including to visit the review applicant (her sister) and her family, including the review applicant’s triplets who the visa applicant has never met. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

11. 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)).

12. The review applicant gave oral evidence that the visa applicant has not travelled to Australia before and has never left Uganda. In the circumstances, the Tribunal makes no findings with respect to the visa applicant’s previous compliance with Australian immigration conditions or those of any other country.

13. 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.

14. The Tribunal discussed each of these conditions with the review applicant. She told the Tribunal that the visa applicant would comply with all of the specified conditions. She said that her sister had no intention of remaining in Australia beyond the period specific in the visa or working or studying here during the period of the permitted stay. The Tribunal found the review applicant to be candid and credible and accepts her oral evidence. 

15. At the hearing, the Tribunal asked the review applicant questions relating to various 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 Uganda.

16. The Tribunal asked the review applicant why her sister had applied for the visitor visa to visit Australia. The review applicant said that she wanted to come to Australia to visit her triplet nieces (who were now three years old) and to assist the review applicant with their care during her stay. When asked what family members the visa applicant had in Australia, the review applicant said that she was the only family member in Australia, all other members of the visa applicant’s immediate and extended family lived in Uganda, except for one sister who lived in the USA. The visa applicant has her mother (who she lives with), two other sisters and, significantly, her four young children (an 11-year-old, a nine year old, and eight year old twins) in Uganda. The Tribunal notes that the visa applicant is separated from her husband, the father of her children.

17. When asked about the visa applicant’s life in Uganda, the review applicant said that her sister had a full and busy life, and many family connections there, not least of which her four children under 12 years old. She said that the visa applicant lived with her children and her mother. The review applicant said that the visa applicant ran two businesses, a mushroom farming business, and a soap-making business. The review applicant said her sister had a well-established life in Uganda, and maintained many social and family ties there. The Tribunal accepts this.

18. The Tribunal raised with the review applicant concerns relating to country information, including information contained in the Department of Foreign Affairs and Trade country information report on Uganda. The Tribunal asked the review applicant if the significant economic, political and security instability within Uganda could be a reason for the visa applicant not to comply with the conditions of her visa if it were granted. The review applicant said that the country situation in Uganda was not a reason why her sister would not comply with any conditions attached to the visa, if one were granted. She stated that if her sister intended to apply for a humanitarian visa then she would have done so already. The Tribunal accepts this.

19. The visa applicant elected not to appear via telephone at the hearing. When asked why this was the case, the review applicant stated that it was the middle of the night at the time in Uganda at the time of the hearing, and that telecommunications were notoriously unreliable in Kampala. The Tribunal therefore did not speak to the visa applicant at the hearing.

    Findings

20. After considering all the evidence before it, on balance the Tribunal considers that factors such as the presence of the visa applicant’s family in Uganda (including and especially her four young children under the age of 12) form a stronger incentive for her to return to Uganda than the incentive for her to remain in Australia with her one sister who lives here.

21. The Tribunal accepts that the visa applicant has a genuine intent to stay temporarily in Australia to visit her sister (and nieces and nephews) in Melbourne. The Tribunal accepts that the visa applicant intends to return to Uganda within the specified timeframe.

22. 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

23. 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.

    Scott Clarey
    Member