Teah (Migration)

[2022] AATA 400

Teah (Migration) [2022] AATA 400 (14 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division  

REVIEW APPLICANT:  Ms Victoria Teah

VISA APPLICANT:  Ms Esther Kalo Teah

REPRESENTATIVE:  Mr Erskine Rodan (MARN: 9358425)

CASE NUMBER:  1934354

HOME AFFAIRS REFERENCE(S):          BCC2019/5367952

MEMBER:Wendy Banfield

DATE:14 February 2022

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 14 February 2022 at 4:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to remain or return – family members and property in home country and family members in Australia – no evidence of community or other ties in home country – children in Australia settled and employed – economic incentive to remain – review applicant’s offer of bond – decision under review affirmed

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 Home Affairs on 13 November 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 25 October 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 Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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. The delegate was not satisfied the applicant genuinely intends to stay in Australia temporarily.

5. The review applicant appeared before the Tribunal on 17 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Liberian English and English languages.

6. 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 Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

8. The review applicant submitted evidence to the Tribunal prior to the hearing which included the Department’s notification and decision record, the representative’s written submission, identity documents, emails and letters from the applicants and witnesses, payslips, bank statements, property documents, letters from the Liberian Refugee Welfare Council, letter from Mercy hospital, photographs and school documents. These documents were considered in assessing the application for review.

9. The Tribunal also considered the evidence submitted to the Department at the time of application.

   The hearing

10. The review applicant confirmed the visa applicant is her mother, who has not travelled to Australia before. She said the original reason for the visit was because she, the review applicant, was pregnant with twins. Also, the visa applicant’s other grandchildren want to see her. It was submitted the visa applicant has responsibilities in her home country and she wants to visit Australia then go back. The review applicant said she has her sister in Australia and six children. It was confirmed the visa applicant lives with her grandchildren, who have children of their own.

11. The Tribunal asked how the visa applicant supports herself in her home country. The review applicant said she has her own property and sometimes the family in Australia send money, but she also supports herself. It was submitted the visa applicant does not have any health problems, is not receiving any medical treatment and is fit enough to travel. She has never travelled outside of Liberia before but has travelled within the country.

12. The Tribunal explained the criteria for the grant of the visa, including whether the visa applicant will comply with conditions attached. The Tribunal accepted that given the visa applicant’s age, she is unlikely to seek work in Australia. The review applicant stated that she will be supporting her mother during a visit which would be planned for “a couple of months”. The review applicant confirmed she is employed as a disability worker in Australia. It was also confirmed the visa applicant is not planning to study and just wants to see her grandchildren. The review applicant said it is difficult for all the family in Australia to travel to see the visa applicant. The Tribunal asked the review applicant whether the visa applicant may want to stay in Australia to be taken care of in her senior years. The review applicant denied she is planning to stay and repeated her mother will only come for a couple of months.

13. The review applicant said there is no reason the visa applicant would apply for protection and her mother’s situation is different to her own. The review applicant said she came due to the war in Liberia and came to stay, while her mother plans to visit temporarily. The review applicant confirmed the visa applicant lives with her granddaughters, Sarah and Patience and their children. She said the children are school aged. When asked how Sarah and Patience support their children, she said their grandmother helps, and they also have a business selling. The review applicant said she has one brother remaining in Liberia and other siblings in Australia.

14. The representative said the visa applicant plans to visit for a prescribed time and referred the Tribunal to the written submissions provided. Strong reason for her to go back because she has her granddaughters Patience and Sarah, she has property, has friends and contacts, and has spent her life in Liberia and wants to continue to be there. The representative said if it was not for COVID-19 people would be able to travel to visit their families.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. In the present case, the visa applicant seeks the visa for the purposes of visiting Australian citizen or Australian resident children. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

18. 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)).

19. There is no evidence before the Tribunal of any non-compliance with conditions of a previously held visa as the visa applicant has not travelled to Australia before.

20. 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.

21. The Tribunal weighed the evidence overall in this case to assess the visa applicant’s genuine intention to stay temporarily in Australia for the purpose for which the visa is granted and whether the visa applicant will abide by key conditions that would be imposed.

22. There is no evidence before the Tribunal to indicate the visa applicant intends to breach condition 8101 in Australia while holding a visitor visa. The visa applicant is of retirement age and will be supported in Australia by the applicant and other family members if she were granted a visitor visa. Given the visa applicant’s age and stage of life, the Tribunal is satisfied she does not intend to engage in study or training in Australia in breach of condition 8201. The visa applicant’s intention to comply with condition 8503 and 8531 is discussed below. The Tribunal also considered all other relevant matters (cl 600.211(c)).

23. The evidence provided to the Tribunal in support of the visa applicant’s genuine intention to visit Australia temporarily relates to the presence of grandchildren and great grandchildren in her home country, her responsibilities there and her property. The visa applicant stated in her written submissions that she helps care for her two granddaughters who are single mothers, as well as their five children, her great grandchildren. According to the application made for a visitor visa, the visa applicant is widowed and not employed. She has adult children in Australia, and they have children. The Tribunal accepts the visa applicant has ongoing personal ties to her home country, however, she has a significant number of close family members living in Australia.

24. The representative’s written submission of 16 December 2021 sets out the following:

    ·     The purpose of the visa applicant’s planned visit Australia after her daughter, the applicant in this case, gave birth to twins.

    ·     The reasons for the Department’s refusal of the application.

    ·     An account of communications with the Australian High Commission in Pretoria, South Africa regarding the visa refusal.

    ·     An explanation of the property documents that were submitted in evidence, and a copy of a transfer document to the visa applicant, Esther Teah.

    ·     Information regarding the visa applicant’s grandchildren and great grandchildren not being listed as non-accompanying family members in the application for a visitor visa, the explanation being that they did not meet the definition of “members of the family unit”.

    ·     Reference to statements from the visa applicant’s grandchildren Sarah and Patience living in Liberia being included in the application but not accounted for in the Department’s decision.

    ·     The visa applicant’s ties to Liberia being her two granddaughters, and five great grandchildren who are all school students.

    ·     The visa applicant owning property in Liberia that was purchased with her daughter Louise and is occupied by her together with her granddaughters and grandchildren.

    ·     Details of the financial status of the visa applicant’s daughters, Victoria and Louise in Australia who can support the visa applicant during an intended visit to Australia.

    ·     The claim that the visa applicant satisfies all relevant public interest and special return criteria for the grant of her Visitor (Subclass 600) visa contained in Schedules 4 and 5 to the Regulations.

    ·     Reference to a letter dated 22 May 2019 from Mercy hospital regarding the review applicant’s then pregnancy and the importance of support for mothers of newborn babies.

    ·     Reference to the visa applicant’s letter of 4 December 2021 stating her intention to travel to Australia to visit her children and grandchildren.

    ·     The visa applicant’s separation from her children in Australia for more than five years and the review applicant’s willingness to provide the Department with a bond for the grant of visa applicant’s visa, to ensure her compliance with the conditions of any visa she is granted to visit them in Australia.

25. The Tribunal considered the representative’s submissions regarding the Department’s refusal of the application for a Visitor (Class FA) visa and accepts the explanation regarding the submission of property documents, and the reasons why the visa applicant’s granddaughters and great grandchildren were not included as accompanying family members. The Tribunal then considered the evidence and assessed whether the visa applicant

26. The Tribunal then considered the visa applicant’s personal circumstances in Liberia. The Tribunal is satisfied she has a property in Liberia that she resides in with her extended family members. However, property can be sold, transferred, or managed by others in the absence of the owner. There is nothing to indicate the visa applicant’s granddaughters would not be able to continue living in the residence in the absence of the visa applicant. There is no independent evidence of strong community or other ties providing an incentive to return.

27. While the visa applicant may live with her granddaughters and great grandchildren in her home country, no satisfactory evidence was presented about the type of care or support she provides for her granddaughters and great grandchildren, or why they need her to return to Liberia. While the great grandchildren are minors and attend school, the visa applicant’s grandchildren in Liberia, Patience and Sarah, are both adults. Sarah Teah’s date of birth according to the Liberian Refugee Welfare Council letters is 27 November 1994 and Patience Teah’s date of birth is 24 October 1991. The Tribunal is not satisfied the visa applicant has demonstrated a strong incentive to return to Liberia after visiting Australia.

28. The Tribunal in assessing relevant personal circumstances finds that the visa applicant has more close family members living in Australia than in her home country including her own children. She also has more grandchildren in Australia than in Liberia. The visa applicant’s adult children are settled and employed in Australia and can provide for their mother. The economic disparity between Liberia and Australia may serve as an incentive for the visa applicant to remain after the end of any permitted stay. The Tribunal accepts the visa applicant wishes to visit her children and grandchildren in Australia, including the review applicant’s twins and the Tribunal sympathises with the difficult in family members in Australia all visiting the visa applicant in Liberia. However, based on the visa applicant’s circumstances in Liberia and the situation in Australia, the Tribunal finds the visa applicant has incentives not to depart Australia.

29. 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

30. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Wendy Banfield
    Member