Olaye (Migration)

Olaye (Migration) [2020] AATA 6104 (11 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Atah Omolola Olaye
VISA APPLICANT:  Ms Esther Ebrudu Ronke Akpomudje
CASE NUMBER:  1918839
HOME AFFAIRS REFERENCE:               BCC2019/1849977
MEMBER:Rosa Gagliardi
DATE:11 December 2020
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 11 December 2020 at 4:46pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourism stream – application of the subclass 457 visa – purpose of remaining in Australia on a longer-term basis – security situation in Nigeria – strong personal ties to Australia–decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 359
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600,222

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 July 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 15 April 2009. 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.
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.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211.
The review applicant/sponsor appeared before the Tribunal on 14 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant overseas.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In the present case, the visa applicant seeks the visa for the purposes of visiting her daughter, the sponsor and her family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.
Background
The applicant is a 60-year-old widow and is residing in rented accommodation in Lagos, Nigeria. Her husband passed away in 2005. The balance of the sponsor’s family (siblings) live in Lagos, Nigeria. The applicant also has her own siblings and extended family living in Nigeria.
At hearing the Tribunal queried whether perhaps the sponsor wanted the applicant, her mother, to have a comfortable age in Australia. The sponsor stated that her mother was coming to Australia principally due to her strong bond with her children; the applicant’s grandchildren. Prior to migrating to Australia, the sponsor and her husband left their young children in Nigeria with the applicant for 5 years to ensure the children’s education was not disrupted. Naturally, the applicant and the children formed a close bond. The sponsor stated that she and her husband also had a close bond to the applicant. Her children rang the applicant almost every day and she wanted to be a part of the children’s lives. They also wanted their mother to see Australia. The migration agent argued that the sponsor and her family had recently moved into a large new house and of course they wanted to show the applicant their daily lives and how they had settled in Australia.
The sponsor also argued at hearing that the applicant belonged to The Church of Jesus Christ of Latter-Day Saints and played a significant role as a volunteer in her Church community. This work was very important to the applicant. The sponsor asserted that the applicant had a full life in Nigeria and had no reason to stay permanently in Australia.
Further, the sponsor emphasised that she and her husband had purchased a block of land for their mother in Lagos and were intending to build a home for her there to settle. The applicant needed to be in Nigeria to oversee the works on the property. Asked what had prompted the purchase of the land, the sponsor stated that the house which her father had built was in the village and the house they planned to build was closer to the city. The sponsor confirmed that the applicant still had the house in the village.
The Tribunal queried whether members of The Church of Jesus Christ of Latter-Day Saints were in any way discriminated against in Nigeria and the sponsor responded that the religion was highly respected and that there were temples everywhere.
Asked how long the applicant wanted to remain in Australia, the sponsor answered, “6 months”. When the Tribunal put to the sponsor that this was a lengthy period for someone who was arguing that the temple and her family in Nigeria were important to her, the sponsor replied that the applicant wanted to spend time with her children and further, she did not need to stay for the entire 6 months. She would accept any period.
The Tribunal put to the applicant the benefits the applicant could obtain by way of a pension in Australia and the fact that if she settled in Australia, she need never have to be concerned about earning an income. The sponsor responded that her husband was a doctor working at the Gosford- Wyoming hospital and she worked with children, so they could afford to support the applicant. The sponsor confirmed that her husband was working away from home.
The sponsor has argued that if it was their intention to have the applicant remain in Australia permanently, they would have applied for a different kind of visa. However, the applicant simply wanted to visit. They also wanted her see Melbourne, Sydney and other major cities in Australia together. The sponsor stated that it was open to the Department to put a No Further Stay condition on the applicant’s visa. The sponsor also expressed her willingness to put up security so that if the applicant did not return to Nigeria their bond would be forfeited. The sponsor stated that the applicant was the first person they had sponsored to Australia and they did not wish to have an adverse migration history. If the applicant could come to Australia it would assist the family psychologically and emotionally.
When the Tribunal rang the applicant overseas it noted that she would earn very little as a bead maker, but she replied that it was enough to meet her needs and further, she had the support of her children. She highlighted that she was a member of The Church of Jesus Christ of Latter-Day Saint. The Tribunal noted that the applicant could perform such a role just as easily in Australia within her Church, but she argued that she could not because she belonged to the Church in Nigeria and not to a Church in Australia.
The sponsor stated that she could not stay in Australia as she had other children living in Nigeria and had 8 grandchildren; one born recently. She cared for her grandchildren and some family members lived with her.
The Tribunal noted that Australia was generally a wealthier society, but the applicant again asserted that she could not stay in Australia due to her strong ties with family members in Nigeria. She also had her siblings. All her family members were in Nigeria. When asked whether it was important to her to be near the remains of her late husband, she agreed that was so.
The Tribunal asked the sponsor to clarify the matter raised in the Departmental decision which noted that the applicant had neglected to declare in her Visitor visa application on

that she had previously been refused a visa. The Tribunal asked the sponsor to clarify which visa the applicant had been refused. The sponsor stated that there had been no intention to mislead the immigration authorities. Her husband had applied for a subclass 457 visa and the applicant was only a secondary applicant on that visa – she was a dependent. They thought that it was only the sponsor’s husband who had been refused the visa and not the applicant given her secondary status on the visa application. The sponsor stated that they did not intend to hide anything as it would have been silly for them to have done so.
The Tribunal highlighted that even leaving aside the false and misleading information provided, the relevant point was that the applicant had expressed an intention to migrate to Australia on a longer-term basis (a subclass 457 is a temporary visa for up to 4 years). The sponsor stated that because their children had lived with the applicant for 5 years her husband had always tried to include the applicant in his visa applications. It was not as though they wanted the applicant to remain in Australia permanently. They just wanted the applicant to be in a position to visit when she wanted to. It was her husband including her mother; and nothing more as the applicant was important to her children’s lives.
The migration agent stated that he had submitted extensive evidence to demonstrate the financial/employment situation of the sponsor and her husband. He also emphasised the close bond between the applicant and the sponsor’s children as she was essentially their guardian for 5 years, and that is what led the applicant being included in the subclass 457 visa application – they did not want to break that bond. According to the migration agent, the applicant wanted to help settle the children in their new country. The applicant was not the main applicant in the subclass 457 visa application and she did not understand the complications of migration law. While they answered incorrectly in their visa application for the Tourist visa, they did not hide anything as she was not the main applicant. The agent stated that previously the applicant had tried to apply for a Tourist visa but had been refused so they wanted to bring the applicant over on a subclass 457. The migration agent added that given his relationship with the sponsor and her husband over the years he could say that the applicant had no intention of staying in Australia permanently. He argued that she could not apply for an Aged Parent as it would have been less expensive to do so offshore. There was no need for her to apply for a Protection visa either.
The agent concluded that the parties had been very upfront and had told the truth. The sponsor and her husband were working in regional Australia as required and they had skills and had made wonderful careers for themselves in Australia.
cl.600.211(a)
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 has taken into account and accepts the evidence indicating that the applicant has travelled to countries within Africa such as South Africa, West Africa, and Ghana. The Tribunal places some weight on this evidence that demonstrates that the applicant abided by the conditions of her visa when in these and other African countries, including returning to her home country prior to expiry of her visa. Nonetheless, the Tribunal also notes that the applicant has not travelled to countries such as Australia with comparable developed social welfare systems, political stability and system of law.
cl.600.211(b)
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:
·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.
While not beyond the realms of possibility given the applicant has a command of the English language, the Tribunal accepts unconditionally that the applicant is not coming to Australia in search of work, given her later years in life. Furthermore, the Tribunal also accepts that the applicant is not intending to study in Australia for more than 3 months, if at all.
The applicant and sponsor have argued strongly that the balance of family remains in Nigeria (her children, grandchildren, and extended family). Furthermore, the applicant derives a sense of community from her involvement in the temple as a member of The Church of Jesus Christ of Latter-Day Saints.
The applicant also has a small business in Nigeria, bead making, which provides her with contentment and some income. Further, she has a home in the village, and the sponsor and her spouse have purchased land for the applicant to oversee the construction of a property closer to the city for her to live in. The applicant claimed that she intended to oversee the construction of the property. A photograph of the land (although the photo is unmarked and there is no denotation of its significance) has been submitted as evidence. More importantly, a Right of Occupancy Land File and Certificate of Occupancy have also been submitted. The applicant and her sponsor have also argued that they support the applicant financially and the Tribunal has sighted evidence that this is the case. These matters are not in contention.
The Tribunal also accepts that the sponsor and her husband are in a financially strong position (evidence of income and savings submitted) and that they are able to support the applicant’s needs in Australia were she to visit, and that they provide considerable financial assistance for her living expenses in Nigeria (evidence sighted by the Tribunal). As such, the Tribunal accepts that the applicant is not leading an impoverished existence in her home country. Review of her bank account demonstrates that the applicant currently held, as at

15 September 2020, 881,203.18 Nigerian Naira, the equivalent of approximately AUD$3084.35. While this is not a significant amount relative to Australian standards, the Tribunal accepts that the exchange rate allows the applicant to live a modest lifestyle.
Nonetheless, the Tribunal queries why if the applicant was so attached to her family and Church in Nigeria she had been a part of plans to include her in an application that would have meant she would have been able to spend an extended period of time in Australia – up to 4 years. It was argued at hearing that the subclass 457 visa was simply being used as a temporary measure to enable the applicant to come onshore and settle her grandchildren into their new life in Australia, and then she could have returned to her home country and returned to Australia as she pleased.
It has been argued that the sponsor’s spouse included the applicant as a secondary applicant and that is why this matter was not declared. The Tribunal is not in this review going to embark on an assessment of whether false or misleading information was provided ‘purposefully’ in the application. Had the Department wanted to apply the Public Interest Criteria 4020 they could have done so which would have entailed the imposition of a 3-year bar on further applications by the applicant. As it is, this did not occur and therefore it is not within the remit of the Tribunal to make a decision as to (a) whether false or misleading information was provided; and (b) whether the false or misleading information was provided purposefully. The focus of the Tribunal’s inquiry is whether the applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.
In a submission to the Tribunal dated 1 September 2020, the agent has written:
The Applicant declares that this was a genuine oversight and was totally unintentional. The Application in question was lodged as a DIY (lodged by the sponsor) and she was under the impression that because she was not the primary Applicant for the 457 visa, she did not need to declare that refusal. She was unaware that she needed to declare all refusals even if she was not the primary Applicant.
It is reasonable to expect that the applicant did not purposefully aim at preventing disclosure of any information to the department. It would be naïve to think that the applicant would try to hide any information that is readily available to the case officers and cannot be concealed.
As explained at hearing several times, however, even if the matter was an innocent mistake (and the Tribunal makes not finding about this), the fact remains that the applicant had previously applied for a visa, which had it been granted (on the basis that the first named visa applicant met the criteria for a subclass 457 visa), the visa applicant would have had the opportunity to remain in Australia in the medium term and may have ended up staying on a more permanent basis as did the stay of the sponsor and her husband.
Even if the Tribunal were to accept (and it has some doubts) that the applicant was included in the subclass 457 visa application because she had not previously been granted a Tourist visa, and the subclass 457 visa was to act as a de facto Tourist visa, at the least it would demonstrate that the applicant is prepared to go to some lengths to circumvent the requirements of the Tourist visa application to achieve a migration outcome to Australia, whether short or long-term. As it is, the Tribunal finds it difficult to accept that the applicant once in Australia on a subclass 457 visa would not have wanted to settle here where her daughter and son-in-law could have provided for her financial and emotional needs more directly. In applying for the subclass 457 visa the Tribunal has doubts that the applicant and the sponsor and her husband had not discussed with the applicant that this visa would have granted the applicant the possibility of an uninterrupted stay in Australia for up to 4 years. The Tribunal can only assume that if the applicant had been so averse to such a possibility, she would have declined being made a secondary applicant given it was open to her to pursue a Visitor visa application again when suitable to her.
The matter of the application of the subclass 457 visa by the applicant does not persuade the Tribunal, therefore, that the applicant’s children, grandchildren and extended family in Nigeria represent incentives for her to return to her home country, having previously contemplated a longer term migration outcome to Australia. Similarly, the act of applying for a subclass 457 visa does not convince the Tribunal that the applicant’s activities with her Church community would deter the applicant from remaining in Australia on a longer-term basis. Indeed, the applicant has actively sought such an outcome through the application for a subclass 457 visa.

Nor is the Tribunal satisfied that the land purchased for the applicant represents an incentive for the applicant to return to her home country on expiry of her visa. Such land/property can be sold without difficulty or can be held onto by the family regardless of where the applicant might be living.
In terms of the applicant’s home in the village and her small business in Nigeria, the Tribunal is not moved to find that they are so significant as to dissuade her from seeking out a migration outcome in Australia.
The Tribunal has considered the matters put forward as demonstrating that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, but considers that these individually and cumulatively, do not convince the Tribunal about the applicant’s intentions. The Tribunal considers that the applicant’s life would be enhanced considerably were she to settle in Australia.
The Tribunal’s concerns about the genuine nature of the visit are such that it considers forfeiture of a bond would not act as a disincentive for the applicant to abide by the conditions on her visa.
cl.600.211(c)
The Tribunal has also considered all other relevant matters (cl.600.211(c)). In his submission of 1 September 2020 the migration agent wrote:
The applicant has no need, interest or incentives in applying for a further onshore visa application. She has other ties in her home country of usual residence that require her not to be absent for an extended period.
Additionally, there is currently no civil disruption, including war, lawlessness or political upheaval in the applicant’s home country, neither is the applicant affected by any such factors.
The Tribunal accepts that The Church of Jesus Christ of Latter-Day Saints is accepted widely in Nigeria and its members are not marginalised on the basis of their religion. The Tribunal also accepts that the economy overall, prior to being hit by COVID-19, was reasonably sound as Nigeria is a key regional player in West Africa, with an abundance of natural resources, and is Africa’s biggest oil exporter, and has the largest natural gas reserves on the continent.[1] Nonetheless, the Tribunal does not concur with claims that currently there is no civil disruption in the applicant’s home country. A recent report indicates that the situation in Nigeria can be volatile:
On October 20, 2020, Nigerians watched in horror on social media as men suspected to be members of the military opened fire on peaceful #EndSARS protesters—a movement responding to a litany of abuses by the Special Anti-Robbery Squad (SARS), a special police unit—in Lagos, Nigeria’s largest city. For more than a decade, Nigerian civil society groups have trained members of public security forces regarding the inviolability of human rights. Despite such training, Nigerian security agencies still follow the all-too-familiar path of perpetrating violence against the very people they have sworn to protect.
Nigeria has had a complex existence since its independence from British colonial rule in 1960—a complexity perhaps more pronounced than in other countries considering the country’s highly diverse population of over two hundred million. Consequently, governing the strikingly heterogeneous country—and addressing the deep-seated grievances of its many groups—can be difficult. Unfortunately, a recurring theme throughout Nigeria’s postcolonial history has been security forces’ propensity to use force to suppress unrest. Deployment of security forces to deescalate potential or actual violent situations is not in itself a wrong practice; preventing the destruction of lives and properties is a prerequisite for a functioning state. In the case of Nigeria, however, security forces routinely use disproportionate force on civilians in gross violations of human rights, such as in Odi, Gbaramatu, Zaria, Zaki Biam, and other instances.[2]
[1]
[2] Council of Foreign Relations, Nkasi Wodu, ‘Nigerian Security Forces and the Dangers of a Violence-First Approach’, Nigerian Security Forces and the Dangers of a Violence-First Approach | Council on Foreign Relations (cfr.org), accessed on 11 December 2020.
Concerns about human rights abuses were also recorded by Human Rights Watch:
Despite claims by federal authorities of increased security measures, an atmosphere of insecurity persisted across Nigeria in 2019. In May, President Muhammadu Buhari began his second four year term following general elections marred by political violence which killed at least 11 people.
The northeast Boko Haram conflict entered its tenth year, with renewed fighting between security forces and Boko Haram factions killing an estimated 640 civilians in 2019 alone. An estimated 27,000 people, including 37 aid workers, have been killed since the onset of the conflict in 2009,according to the United Nations Office for Coordination of Humanitarian Affairs (UNOCHA).
….
Elsewhere in the country, there were widespread kidnapping, banditry and recurring cycles of deadly violence between herdsmen and farmers. The clampdown on peaceful protests, arrest and detention of activists, and media repression signified a renewed intolerance of free speech and dissent by Nigerian authorities.[3]
[3] Human Rights Watch, World Report 2020, ‘Nigeria Events of 2019’, World Report 2020: Nigeria | Human Rights Watch (hrw.org), accessed on 11 December 2020.
Even if such events have not impacted on the applicant directly, it is not possible to describe the security situation in Nigeria as being favourable when compared to Australia.

Conclusion
For the above reasons 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
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Rosa Gagliardi
Member

The World Bank, Overview, 3 November 2020, Nigeria Overview (worldbank.org), accessed on
11 December 2020.

[2020] AATA 6104

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness