Onakoya (Migration)

[2020] AATA 222

Onakoya (Migration) [2020] AATA 222 (5 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Olamide Aderonke Onakoya

VISA APPLICANT:  Mrs Modupe Mojisola Oshofowowe

CASE NUMBER:  1936112

HOME AFFAIRS REFERENCE(S):           BCC2019/5700893

MEMBER:Melissa McAdam

DATE:5 February 2020

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 05 February 2020 at 4:15pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine intention to stay temporarily – visa applicant’s partner and family in home country – visit to help review applicant with young child with medical conditions – review applicant and husband will accommodate and support visa applicant – review applicant’s compliant migration history, work in Australia and offer of security bond – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), 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 19 December 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The review applicant was represented in relation to the review.

3. The visa applicant applied for the visa on 12 November 2019.  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 Sponsored Family stream.

4. 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.

5. The visa applicant provided the following information in her visa application:

   a.She is a 54 year old married woman from Lagos in Nigeria.

   b.Her partner and three children, aged 16, 18, and 20, are living in Nigeria.

   c.She wants to come to Australia for up to six months to visit family here.

   d.Her sister lives in Australia and is an Australian citizen.

   e.She works as a volunteer in her brother’s business in Nigeria.

   f.Her sister will accommodate her and support the costs of her stay in Australia.

6. The review applicant provided the following information in the visa application:

   a.She is the visa applicant’s sister and is sponsoring the visa applicant’s visit to Australia.

   b.She has been employed by Randstad Pty Ltd agency as an administrative officer for over 3 years.

7. The applicants enclosed copies of the following documents with the application:

   i.The review applicant’s bank account statements

   ii.A medical certificate dated 4 October 2019, from Dr Emily Selim, stating that the review applicant has a 7 month old baby girl who was born premature with multiple health complications. The visa applicant would be able to provide a great deal of assistance to the review applicant if she could visit Australia.

   iii.A Nigerian government Certificate of Vaccination for the visa applicant.

   iv.A copy of the biodata page of the visa applicant’s Nigerian passport.

   v.The visa applicant’s Lagos Birth Certificate.

   vi.The visa applicant’s Marriage Certificate.

   vii.The visa applicant’s Nigerian National Identification Number.

8. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because she had not provided evidence of any previous travel; she had not demonstrated a substantial reason for leaving her family in Nigeria for six months; and she was not satisfied the visa applicant would abide by the conditions of the visa or depart Australia at the end of the requested stay.

   Information to the Tribunal

   Submission

9. On 23 December 2019 the review applicant submitted the following information to the Tribunal:

   i.A letter from the review applicant stating that she has a newborn baby born premature with medical conditions. Her daughter is attending intervention for cerebral palsy and is registered on the NDIS. She is tube fed and cannot eat orally. The review applicant has no relative or other family member in Australia. She is due to return back to work on 20 January 2020. She has casual work, through an Agency, with NSW Health. She had been given one year’s compassionate leave.  However she will lose her position with NSW Health if she does not return to work on 20 January.  She also has two boys aged 9 and 6. Her husband has used all his annual leave to assist her. She would appreciate a visit from her sister to help her take care of her baby daughter for approximately six months. This should be enough time for her daughter to develop sufficiently to be able to attend child care. The review applicant is willing to pay a security bond for her sister’s visit.

   ii.A letter dated 18 July 2019 from Dr Tamara Kufoof of the Children’s Hospital, regarding the review applicant’s then 5 month old daughter, Oluwatomi (Tomi), outlining the baby girl’s serious health issues.

   iii.A letter dated 29 August 2019 from Dr Jacqueline Stack stating that Tomi has complex health issues and is seeing a range of specialists at the Children’s Hospital. Dr Stack outlines some improvements in Tomi’s development.

   iv.A letter by Dr Lisa Myers of the Children’s Hospital summarising Tomi’s condition, complex medical history, and need for follow up treatment and examinations.

   v.A letter dated 9 December 2019 from Dr Jacqueline Stack outlining some developmental gains for Tomi, that she is attending the Cerebral Palsy Alliance, and that she has a high future risk assessment for motor problems.

   vi.Photographs of Tomi at hospital

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

11. 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.

12. In the present case, the visa applicant seeks the visa for the purposes of visiting her sister and sister’s family in Australia and supporting her sister in her care for her baby daughter.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

13. 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)).

14. The visa applicant has not previously held a substantive visa in Australia so there is no evidence of past compliance or non-compliance by her.

15. 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.

16. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant while in Australia. The Tribunal accepts that the review applicant and her husband have personal savings and that the visa applicant has access to sufficient funds to support her temporary stay in Australia. There is no indication before the Tribunal that the visa applicant intends or needs to work while in Australia. In these circumstances the Tribunal is satisfied she intends to comply with condition 8101.

17. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied she intends to comply with Condition 8201.

18. Condition 8503 refers to entitlement and is not a condition that involves compliance.

19. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

20. The Tribunal accepts that the visa applicant has a partner and three children in Lagos, Nigeria. The Tribunal considers that the presence of these close family members  represent significant incentive for the visa applicant to return to Nigeria after a short stay in Australia.

21. The Tribunal considers that six months is a reasonable period of time for the visa applicant to visit Australia in view of the short term support her sister needs here.  It also appears reasonable to the Tribunal for the visa applicant to leave her own family in Nigeria temporarily for six months to render support to her sister in Australia, given the compelling compassionate nature of the review applicant’s situation.

22. The Tribunal has viewed the Department’s record of the review applicant’s migration history and notes that she has been in Australia since 2009 with no observable instances of any breach of her visa conditions, prior to obtaining citizenship. The Tribunal gives substantial weight to the good migration history of the review applicant in Australia. The Tribunal also acknowledges the importance to the review applicant of maintaining a good reputation with regard to her family and relatives’ immigration compliance in Australia. 

23. The Tribunal notes the review applicant’s stated willingness to lodge a security bond for her sister’s visit to Australia. The Tribunal accepts this will be further incentive for the visa applicant to comply with her visa conditions and depart Australia before the expiry of her visa.

24. There is no indication in the available evidence of any factors which would cause the visa applicant to remain in Australia and to not return to Nigeria before the expiration of her visa.

25. 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

26. 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.

    Melissa McAdam
    Member