Russell (Migration)

[2018] AATA 5735

Russell (Migration) [2018] AATA 5735 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Beryl Beatrice Akinyi Russell

VISA APPLICANT:  Mr Gerald Otieno Odhiambo

CASE NUMBER:  1730192

HOME AFFAIRS REFERENCE(S):           BCC2017/4000540

MEMBER:Tania Flood

DATE:8 November 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 08 November 2018 at 3:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visit sister and her family – family migration history – compliance with visa conditions – intention to comply with visa conditions – secure financial position – familial ties in home country – mother’s plans to visit Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 30 November 2017 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 29 October 2017. 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 visa was refused on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied he genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 7 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas.

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

   BACKGROUND

7. The visa applicant is a thirty year old, single Kenyan male.  He resides in Nairobi and has a mother and brother also living in Kenya.  He has applied for a Visitor visa to visit his sister and her family in Australia. He has been employed as a Manager at Gray Consolidated Limited since 3 November 2014.  He will fund his own travel to Australia.

8. The review applicant is the visa applicant’s sister.  She is married has two children with her current husband. On 24 October 2018 she provided the following information:

9. Her mother has previously visited Australia on three occasions in 2016, 2017 and 2018. Her daughter came to Australia in 2015 and is now a permanent resident of Australia.

10. Her brother is the managing director of a company and also the owner of a small business. 

11. Her brothers immediate and extended family members all reside in Kenya as does his fiancée, close friends and work colleagues.  He has the added responsibility of assisting his mother with the management of a small number of investment properties in Kenya.

12. Her brother has previously been granted visas to South Sudan and the United States.

    TRIBUNAL HEARING

13. The review and visa applicant provided consistent and credible evidence to the Tribunal which is summarised as follows:

14. The review applicant married an Australia citizen in 2014.  She and her husband have two children.  She also has a daughter from another relationship and her husband has two children from a former relationship as well.

15. The review applicant’s daughter has been granted Australian Permanent Residence but returned to Kenya to complete her studies.  She currently lives with the review applicant’s mother in Nairobi.

16. The review applicant and her husband both work.

17. The review applicant’s mother, daughter, two brothers and extended family reside in Kenya. 

18. The visa applicant is currently single but is engaged to be married.  He is the Managing Director of a large marketing company in Kenya.  In addition, he has recently commenced his own marketing company dealing with smaller clients.  He has one employee who handles the day to day operations of his new business. 

19. The review and visa applicant’s mother has three rental properties and three plots of land from which she derives an income.  The visa applicant assists her with the management of these properties particularly when she is visiting her daughter in Australia.

20. The visa applicant has travelled to South Sudan and Uganda.  He also visited the United States of America with his mother when he was young.

21. The visa applicant intends to make a short visit to Australia for approximately three weeks to celebrate Christmas and New Year with his sister and her family and to do some sightseeing.  The visa applicant has yet to meet his nephews.

22. The visa applicant is in a financial position to pay for his own travel to and within Australia.  His sister will assist him with accommodation and food during his stay.

23. The visa applicant is a Catholic and of Luo ethnicity.  Neither his religion or his ethnicity have or are causing him any problems in Kenya.  He is not involved in any political activities.

24. The review and visa applicants’ mother is intending to make a further visit to Australia next year.

25. The visa applicant will return to Kenya at the end of his trip because he has stable employment, a newly developed business and a fiancée whom he intends to marry.  Furthermore, the bulk of his family members are in Kenya including his mother for whom he has principal responsibility.

26. The review applicant is willing to pay a security bond in order to facilitate the grant of her brother’s visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. 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.

28. In the present case, the visa applicant seeks the visa for the purposes of visiting family.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

29. 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)).

30. Between 2013 and 2015 the review applicant entered and departed Australia several times holding Visitor visas.  On all occasions she complied with the conditions of her visa.  On 7 October 2015 she was granted a Partner Provisional visa and returned to Australia on 15 October 2015.  On 28 November 2017 she was granted a Partner visa.

31. The review applicant’s daughter first entered Australia on 28 December 2013 as the holder of a Visitor visa.  She departed Australia on 16 January 2014 before her visa expired.  On 7 October 2015 she was granted a Partner Provisional visa and returned to Australia on 15 October 2015.  She departed on 1 December 2016 and returned again on 28 October 2017.  On 28 November 2017 she was granted a Partner visa.  She departed Australia on 3 January 2018.

32. The review and visa applicants’ mother has visited Australia three times between 2016 and 2018 as the holder of Visitor visas.  On each occasion she departed Australia in keeping with the terms of her visa.

33. 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.600.611(2)):

    ·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.

34. The visa applicant has provided proof of his employment including letters from his employer and copies of bank statements showing salary deposits in the amount advised at hearing.  In addition he has provided proof of his newly registered company.  The Tribunal is satisfied the visa applicant is financially secure and able to cover the cost of his travel and living expenses in Australia.  In addition, on the strength of the review applicant’s oral evidence the Tribunal is satisfied that she and her husband are employed and in a position to assist the visa applicant with food and accommodation throughout his proposed length of stay in Australia.  The Tribunal is satisfied the visa applicant will not, and has no need to work in Australia if he is granted a Visitor visa.  The Tribunal is satisfied the visa applicant will comply with condition 8101 if he is granted a Visitor visa.

35. The review and visa applicants provided consistent evidence in respect of the proposed length of stay in Australia, namely up to three weeks, and the reason for the travel, namely to spend time with family, including meeting his nephews for the first time and undertaking some sightseeing.  In the circumstances, and given the short period of proposed travel, the Tribunal is satisfied the visa applicant does not intend to engage in study or training in Australia.  The Tribunal is satisfied the visa applicant will comply with condition 8201 if he is granted a Visitor visa.

36. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

37. On the available evidence the visa applicant has invested in the development of a new company which he is building up alongside his full-time employment.  He is also engaged to be married in the future and he and the review applicant gave generally consistent evidence about his fiancée and their involvement to date.  In addition, the review and visa applicant’s gave consistent evidence in respect of their mother’s real estate investments and the visa applicant’s role in helping her managing this income.  Also, the visa applicant has a brother, niece and other extended family members in Kenya as opposed to his one sister in Australia.  These matters combined persuade the Tribunal that the visa applicant has strong incentives to return to Kenya after a short visit to Australia.

38. The Tribunal has also placed much weight on the family migration history which is outlined above.  In addition, the Tribunal notes and accepts the review applicant’s advice that her mother is planning another visit to Australia in 2019 to spend time with her grandchildren and to provide some relief for her and her husband for a time while they balance their work and family commitments.  The Tribunal considers this provides an added incentive for the visa applicant to comply with the conditions of his visa in order not to jeopardise his mother and sister’s future plans.

39. Lastly, the Tribunal has placed weight on the review applicant’s willingness to provide a security bond if required to do so.

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

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.

    Tania Flood
    Member