Nisha (Migration)

[2018] AATA 872

Nisha (Migration) [2018] AATA 872 (15 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Shamim Mun Nisha

VISA APPLICANT:  Mrs Rozina Shabnam Nisha

CASE NUMBER:  1711364

DIBP REFERENCE(S):  BCC2017/750111

MEMBER:Louise Nicholls

DATE:15 February 2018

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 15 February 2018 at 9:49am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Age and limited English skills – Husband and extended family ties in Fiji – Review applicant’s character references – Effect on future visa applications

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The visa applicant, Rozina Nisha is a citizen of Fiji and is 44 years of age. She is seeking a sponsored visitor visa to visit members of her family living in Australia. She is being sponsored by her sister, Shamin Nisha (45 years old) who is the review applicant in this matter.

2. The review applicant is seeking a review of a decision made by a delegate of the Minister for Immigration on 21 March 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

3. The visa applicant applied for the visa on 23 February 2017. She provided;

   ·Visa applicant’s Fijian birth certificate, marriage certificate and passport extract.

   ·Visa applicant’s Fijian motor vehicle registration and ownership documents.

   ·Photocopy of review applicant’s Fijian birth certificate, Australian citizenship certificate and passport extract.

   ·Review applicant’s written invitation to visit addressed to the visa applicant dated 17 February 2017.

   ·Photocopy of a letter from Dr. Tablante dated 12 December 2015.

   ·Photocopy of the review applicant’s property rates and levies, employment statements and bank statements.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. The delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the stated purpose.

5. The application for review was made on 27 May. The review applicant provided a copy of the delegate’s decision of 21 March 2017, written submissions setting out details of the travel history of members of the review applicant’s family, a copy of a previous decision record refusing the visa applicant’s visa application dated 30 September 2008, a medical report relating to the visa applicant’s grandfather and several character references from the review applicant’s employer, pharmacist, friend and family doctor.

6. The review applicant appeared before the Tribunal on 9 February 2018 to give evidence and present arguments. The Tribunal took evidence from the review applicant’s husband who was present at the hearing. The Tribunal also received oral evidence from the visa applicant by conference telephone from Fiji. The applicants and witnesses gave evidence about their background, family circumstances and the purpose of the proposed visit.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

9. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

10. 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.

    Background

11. The review applicant is 45 years of age and was born in Lautoka, Fiji. She first came to Australia when she was 16 years of age to attend school in Australia. At that time she came to live with her grandparents. She has lived in Australia since she was 16 years of age and studied accounting at TAFE when she finished school.

12. She is married and lives with her husband in Sydney. Her grandparents, parents and brother live in Sydney and her remaining sister, the visa applicant lives in Lautoka with her husband. The applicant’s brother works as a driver in the disability sector. He is 42 years of age and came to Australia as the holder of a partner visa. He and his wife are expecting their first child in June 2018. The applicant’s parents are retired; however, her father was employed in an abattoir in country NSW before his retirement.

13. The review applicant’s grandparents are elderly and have multiple medical conditions which prevent them from travelling to Fiji. Her grandfather has dementia and heart disease. She stated that her uncle cares for her grandparents.

14. The review applicant is employed as a manager in an aged care facility in Roselands, NSW and had worked for the same employer for 27 years. The review applicant owns a property in Chipping Norton in which she lives with her husband.

15. The visa applicant is 44 years of age. She lives in the family home in Lautoka with her husband. They do not have any children. Her husband has a large extended family in Fiji and he is the joint owner and operator of a family farm business. He also does handyman work.

16. The visa applicant does not do any paid work as she has had some chronic illnesses in the past which have prevented her working. The review applicant stated that whilst the visa applicant does not have a large income or valuable assets, she and her husband have the benefit of living in the family home in Fiji and her brother in law earns enough income for them to live comfortably.

    Purpose and Duration of Visit.

17. In the present case, the visa applicant seeks the visa for the purposes of visiting her sister and other family members. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

18. The review applicant and visa applicant proposed a visit of between one and three months. The visa applicant would travel to Australia without her husband who would remain in Fiji to care for the family home and help out on the family farm.

19. The visa applicant would stay most of the time with the review applicant as she has a townhouse with several bedrooms. The review applicant will pay all the travel and other expenses associated with the proposed visit. The visa applicant would spend her time in Sydney visiting her grandparents, parent and brother and doing some sightseeing.

20. The review applicant stated that the family has not had a family celebration following her wedding in 2013 because they did not want to celebrate without her sister. Further her brother’s wife is expecting a baby in June 2018 and the family hope to celebrate together when the child is born.

    Compliance with conditions of last substantive visa

21. 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 visa applicant has not previously travelled to Australia and there is no evidence of non-compliance with any visa conditions.

    Travel and migration history

22. The visa applicant has not travelled outside Fiji; however, her husband has travelled to New Zealand and complied with his visa conditions.

23. The review applicant gave evidence that her parents had sponsored her aunt and uncle in 2017 on two occasions and that they had complied with the conditions of their visas and returned to Fiji at the end of the visits. She also referred to visits by cousins in 2014 and 2016. She stated that all her relatives had complied with their visa conditions and returned to Fiji.

24. When asked if she could explain the reference in the delegate’s decision to the circumstances regarding the family’s immigration history, the review applicant stated she was not sure but thought it referred to her parent’s migration history. She stated that her parents had come to Australia as visitors and had obtained advice from an agent regarding an application for a visa. She understood that they had applied for the wrong subclass of visa on poor advice and their status was only resolved when the Minister for Immigration intervened and granted them work visas. She stated that her father worked in an abattoir in rural NSW before his retirement.

25. It is not at all clear from either the delegate’s decision or the review applicant’s evidence what the delegate is referring to when she notes the family’s immigration history. It appears from Departmental records that an uncle has obtained a family visa and her brother has obtained a partner visa. It also appears that the review applicant’s parents may have lodged protection visa applications many years ago and were ultimately unsuccessful in their applications. The review applicant’s evidence on this issue was limited and could not be described as expansive. However, the Tribunal also notes that Departmental records show that the Minister intervened and granted visas to the review applicant’s parents in 2008.

26. The review applicant’s husband also gave evidence on her behalf. He noted that he and his wife married in 2013 and his family members are living overseas. He would like them to visit in the future and as he hopes that his family can visit in the future, he has an incentive to ensure that his sister in law complies with the conditions of her visa. He told the Tribunal his parents live in Pakistan, one brother lives in the United Kingdom and one brother lives in Dubai. His stepbrother lives in Pakistan with his parents. His mother was the manager of the Regal Industries Group in Pakistan.

27. Notwithstanding some possible issues with her parent’s migration history and a clear pattern of family migration to Australia, the Tribunal notes that the review applicant’s migration history indicates that she has complied with conditions of her previous visas and has been a citizen for many years. There are also a number of family members who have visited from Fiji and met the conditions of their respective visas. She has given evidence that she is an honest and trustworthy person and provided a number of character references to confirm her evidence. She states that she will ensure that the visa applicant meets the conditions of any visa which might be granted. She stated that she would not do anything to jeopardise her good reputation.

28. Whilst the review applicant’s evidence is somewhat self-serving, the Tribunal has accepted at face value her assurance that her sister’s intention is to stay temporarily in Australia to visit family. She appeared to be a credible and genuine witness and she acknowledged that the Department has legitimate reasons to be concerned about her sister’s proposed visit given the visa applicant’s strong family ties in Australia. However, she submitted the visa applicant should be given an opportunity to demonstrate her bona fides.

    Intention to comply with conditions and other relevant matters.

29. 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.

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

31. The visa applicant is 44 years of age and is described as a housewife. She speaks Hindi fluently and basic English. She has not worked in Fiji and is dependent on her husband for financial support and her Australian family who provide rent free accommodation in the family home. She has a good relationship with her husband.

32. The review applicant works in health care management and has provided documents showing she earns a good income and owns property in Sydney. She and her husband share expenses and appear to be comfortably well off. She gave evidence she will financially support the visa applicant and there is no pressure on the visa applicant to obtain work during the proposed visit. Given the visa applicant’s age and limited English skills the Tribunal does not consider she will engage in study or training in Australia. The Tribunal accepts that the visa applicant does not intend to work or study in Australia.

33. If the visa applicant is granted a visit visa she will not be entitled to apply for a substantive visa during her visit. It appears from the evidence that the visa applicant’s grandparents are cared for by her uncle, the review applicant gave evidence that her parents are in good health and the visa applicant is currently married. The Tribunal accepts she intends to comply with the condition restricting her eligibility to apply for an onshore visa.

34. With respect to her intentions to depart Australia at the end of the proposed visit, both the review applicant and visa applicant gave evidence that the visa applicant intends to return to her husband in Fiji at the end of the visit. The evidence given by the applicants is that her husband has a large extended family in Fiji and he is not currently interested in moving away from his family.

35. The review applicant concedes that the visa applicant’s family ties in Australia are very strong but submits that the visa applicant has a stronger incentive to return to her husband and his extended family than remain in Australia at the end of the visit. She also submits that the visa applicant has an incentive to comply with visa conditions to establish a good migration history which will assist her in future applications for visits.

36. The Tribunal has considered the country situation regarding Fiji and notes that the Department of Foreign Affairs reports that Fiji is generally stable and secure[1]. It notes that the current DFAT report indicates that security services, including police and military, are well resourced and maintain effective control of the country.

    [1] DFAT Country Report Fiji 27 September 2017.

37. The visa applicant is of Indian ethnicity and the DFAT report notes that:

    3.8 Instances of official discrimination against Indo-Fijians are limited. In the September 2014 election, the Bainimarama government drew strong support from the Indo-Fijian population (up to 80 per cent of the Indo-Fijian vote). DFAT assesses that the strength of Indo-Fijian support for the government is in large part because of its non-discriminatory policies in contrast to the strong nationalist stance of the major opposition party, SODELPA.

    3.9 In general, Indo-Fijians and indigenous Fijians co-exist amicably. While the two groups have distinct cultural traditions, over 100 years of co-existence in Fiji has led to a substantial degree of cultural overlap between the two groups and a level of social symbiosis exists.

38. On the material before it, there is no evidence that the conditions in Fiji would act as an incentive for the visa applicant to remain in Australia or breach the conditions of any visit visa granted.

39. As discussed with the review applicant it appears on the evidence that the visa applicant has a strong incentive to remain in Australia and the only factor which would encourage her to return is to re-join her husband and his family at the end of the visit. The applicant does not have stable employment or dependent children which might act as an incentive to return. However, the Tribunal was impressed with the sincerity of the review applicant and the character evidence provided on her behalf. It also considers that she is aware of the difficulties she and her family members may have in the future if the visa applicant does not comply with the conditions of her visa.

    Conclusion

40. Taking into account all the circumstances, but not without some doubts, the Tribunal is satisfied that the visa applicant intends a genuine visit.

41. 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

42. 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.

    Louise Nicholls
    Senior Member