Mursal (Migration)

[2020] AATA 5695

Mursal (Migration) [2020] AATA 5695 (21 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Kerima Ruman Mursal

VISA APPLICANT:  Ms Hawa Salim Mahajub Ruman

CASE NUMBER:  2006417

HOME AFFAIRS REFERENCE(S):          BCC2020/298758

MEMBER:John Longo

DATE:21 October 2020

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 21 October 2020 at 10:59am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) (Class FA) – Tourist stream – genuine temporary entrant – visit great grandchildren and review applicant’s fiancé incentives to return – owns property in Sudan – head of household – extended family back home – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211

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 27 February 2020 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 27 January 2020. 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 for the purpose for which the visa could be granted.

5. The review applicant appeared before the Tribunal on 14 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Raymond Karl Wurlod.

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 the review applicant and her family 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)). The Tribunal had the benefit of the review applicant’s oral evidence at the hearing. The Tribunal found the review applicant’s evidence to be credible and accepts this evidence.

   Clause 600.211(a)

10. The review applicant gave oral evidence that the visa applicant had not travelled to, nor applied to travel to Australia in the past. In the circumstances, the Tribunal makes no findings with respect to previous compliance with Australian immigration conditions.

    Clause 600.211(b)

11. The Tribunal must also consider whether the visa applicant intends to comply with the mandatory conditions to which the Subclass 600 visa would be subject: cl.600.211(3)(a).

12. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·8101 – must not work in Australia;

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

13. The Tribunal discussed each of these conditions with the review applicant. The review applicant told the Tribunal that the visa applicant would comply with all conditions as she does not speak English, and this would be a further reason as to why she would not study or work while in Australia. The Tribunal found the review applicant to be credible, so the Tribunal accepts her oral evidence. This evidence weighs in favour of the visa applicant having a genuine intention to visit Australia temporarily.

    Clause 600.211(c)

14. The Tribunal has also considered all other relevant matters, pursuant to cl.600.211(c).

15. In the primary decision, the delegate noted that the visa applicant had three sons and a grandchild in South Sudan who were not travelling. The delegate also determined that while the visa applicant owned property in South Sudan, the economic conditions in South Sudan did not make it a compelling tie to her country of usual residence. The delegate gave weight to the visa applicant’s personal and economic circumstances as factors which act as an incentive for the visa applicant not to depart Australia.

16. Mr Wurlod, who is the review applicant’s fiancé, stated that the reason for the visa applicant visiting Australia is to meet her great grandchildren, who she has not met, but also, to allow him to seek her blessing in his and the review applicant’s intended marriage. He stated that he wishes to do this to respect his fiancé’s cultural traditions. He stated that he is unable to go to South Sudan, due to holding an Australian government security clearance, which would be revoked if he went to South Sudan.

17. Mr Wurlod also stated that they had listed only immediate family in the submissions to the Tribunal and not the extended family. If the extended family was included, which includes the partners of the visa applicant’s children, her husband’s other wives and their families, and their children, there would many more family members. The Tribunal notes that the review applicant has listed that the visa applicant has three sons, two grandsons and eight grandchildren in South Sudan.

18. The Tribunal also asked the review applicant questions to ascertain the 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 Sudan. The review applicant stated that while the visa applicant is not employed, as she is the head of the family she is supported in South Sudan by her children, including the review applicant. The review applicant also stated that the visa applicant, due to her father having three other wives, had further family and she lives with these family on the family compound, which she owns. The review applicant stated that she has her own home on the land, as do other family members, and this will mean she will not want to stay in Australia.

19. The review applicant stated that the visa applicant was visiting to see her and her family, including meeting her great grandchildren, which she has not met. The visa applicant was also to meet the review applicant’s fiancé in person for the first time. The review applicant was hoping to show the visa applicant how well the review applicant and her children had done in Australia.

20. With respect to factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay, the Tribunal notes that the visa applicant has some family members present in Australia. The review applicant told the Tribunal that the visa applicant has the review applicant and her children (the visa applicant’s grandchildren) and grandchildren (the visa applicant’s great grandchildren) living in Australia. The review applicant stated that the visa applicant has some friends in Queensland with whom she might visit if permitted.

21. The delegate did not raise country information as a concern in the primary decision and no specific country information was discussed with the review applicant at the hearing. At the hearing, the review applicant and the visa applicant gave oral evidence about a number of the visa applicant’s personal circumstances which would encourage her to return to Sudan at the end of the proposed stay, including being the head of the family, her property, and that there are more family members, including extended family in South Sudan.

22. The review applicant also gave oral and written evidence that she will be responsible for the visa applicant’s expenses and accommodation while in Australia. Mr Wurlod also gave evidence regarding this matter. The Tribunal notes the review applicant’s oral evidence that she is employed in disability care on a full-time basis. The Tribunal accepts the review applicant’s and Mr Wurlod’s oral and written evidence on the reason for the visa applicant’s travel to visit her family and to allow Mr Wurlod to meet and seek her blessing for their marriage.

23. After considering all the evidence before it, on balance, the Tribunal considers that the presence of the visa applicant’s three children as well as other extended family, her asset (a property) and her role as head of the family form stronger incentives for her to return to South Sudan than the incentive to remain in Australia with her daughter and her family. The Tribunal has also considered the written submissions of the review applicant and Mr Wurlod regarding the visit of the visa applicant. Overall, having regard to the specific circumstances of the case, the Tribunal does not share the delegate’s concerns.

24. 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

25. 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.

    John Longo
    Member