Tesfay (Migration)

[2018] AATA 4136

Tesfay (Migration) [2018] AATA 4136 (5 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yonas Abera Tesfay

VISA APPLICANT:  Mrs Meseret Kidane Habte

CASE NUMBER:  1713187

HOME AFFAIRS REFERENCE(S):           CLD20172363661

MEMBER:Brendan Darcy

DATE:5 September 2018

PLACE OF DECISION:  Melbourne

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 September 2018 at 8:58am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – purpose to visit family – septuagenarian – children’s material support – ongoing familial relationship – poverty and poor governance in home country – desire to see grandchildren – 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 24 May 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 12 May 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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied the applicant did not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 4 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s biological sisters, Aster Abera Tesfay and Shewit Abera Tesfay, and two witnesses, Alem Grecherkos Abay and Million F. Gebremedhin, claiming to know both the visa applicant and her family over many years.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages. The review applicant was represented in relation to the review.

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

   BACKGROUND

8. The visa applicant is a national of Ethiopia and was aged in her seventies at the time of making this decision. She has been widowed for many years and not since remarried. She requested a visitor visa on 12 May 2017.

9. On behalf of the Minister, the delegate refused to grant that visa on 24 May 2017. The decision record provided vague reasons without detailed findings for refusing the application. 

10. The applicant’s son, who has Australian citizenship, applied as the review applicant to have the delegate’s refusal decision reviewed by the Tribunal on 26 June 2017.

11. On the departmental file (CLD2017/23636616) is a completed 1419 Form, in which the visa applicant indicates she wishes to temporarily visit Australia for six months for the purposes of seeing her children and grandchildren and because she is ageing and does not really know how much time she has left. The visa applicant also states that she relies on her children to send her money and that her son works to support her financially.

    Evidence before the Tribunal

12. A copy of the decision record was attached with this review application.

13. The review applicant provided a written letter outlining that he and his Australian citizen siblings are confident the visa applicant will return to Ethiopia as she is a respect elderly woman with a strong Christian faith with her own home in her home country. They also argue she is well established in her community with many extended family members and friends to support and care for her. He claims he and his siblings would be happy to offer the government security if requested.

14. When the review applicant responded to the Tribunal’s invitation to attend a scheduled hearing, he submitted a copy of bank record indicating that review applicant had a balance of about 67,000 Australian dollars. During the hearing, he explained that he transferred money from his mortgage account to his savings account to illustrate his financial capacity.

15. Also submitted to the Tribunal were a number of untranslated documents, appearing to relate to home ownership in Ethiopia. During the hearing, the review applicant explained the documents indicated that the visa applicant owned three houses from which she earned some rental income.

16. On the day of the hearing, the review applicant provided evidence of money orders sent to the visa applicant and list of the visa applicant’s children and grandchildren.

17. With regards, the oral evidence provided at the scheduled hearing, the review applicant explained provided consistent and credible oral evidence that supported his documentary and written evidence. He was able to elaborate on his and his sister’s visa history and the personal circumstances of his mother back in Ethiopia. While the visa applicant’s oral evidence was not extensive, her testimony was consistent and supportive of the other evidence.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

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

20. 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)).

21. There is no evidence or claims that the visa applicant has ever visited Australia in the past or even departed her home country in the past and so places no adverse weight in finding the visa applicant not to be a genuine temporary visitor if the visa were to be granted.  

22. 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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

23. Given the visa applicant is a septuagenarian, the Tribunal is satisfied that she is not coming to Australia to work and study long term. Accordingly the Tribunal finds it implausible and unlikely the visa applicant will breach these conditions.

24. It was discussed in the hearing that it was open to the department to impose other conditions on the visitor visa if granted, namely 8101(maintain private health insurance), 8503 (no further stay), and 8558 (no stay beyond 12 months within an 18 month period).

25. During the Tribunal’s reading of relevant country information, it has noticed that the poverty and poor governance continues to adversely blight the material conditions of rural Ethiopians, such as the visa applicant. While the visa applicant is from a nation which has been ravaged by dictatorships, civil war and famine and that it was in this context that led to her being separated from her children, the Tribunal accepts that despite this dislocation and trauma, she and her children have maintained an ongoing familial relationship since their resettlement. Superficially but not insignificantly, these are significant factors in considering that the visa applicant may apply for another visa, overstay her visitor visa’s period of stay and breach the condition imposed on her visitor visa if granted.  

26. The evidence before the Tribunal indicates that the review applicant relies heavily on remittances sent by her family in Australia.  While the visa applicant does not have access to sufficient funds to remain in Australia for six months herself, there is evidence that she has access to her children’s material support, as the Tribunal has regard to the review applicant’s steady work and bank and mortgage accounts. In this regard, the Tribunal finds that the review applicant has the financial capacity to support the visa applicant in maintain private health insurance.

27. During the Tribunal’s reading of relevant country information, it has noticed that the poverty and poor governance in Ethiopia as a developing country continues to adversely blight the material conditions of rural Ethiopians, such as the visa applicant.

28. However, the written and oral evidence provided compellingly illustrated that the visa applicant enjoys a rich spiritual and family life whereby she is involved in her local church and surrounded by her own siblings, an extended family and the familiarity of her life. She also owns three houses from which she earns some rental income which contributes to the remittances provided by her children in Australia.   Indeed, her reliance on remittances indicates the visa applicant has a relatively higher standard of living than if she relied on her extended family’s agricultural income and her rental income.

29. On balance, the Tribunal considers that the sponsor’s current circumstances and his mother’s strong desire to see her children and grandchildren before her passing is compelling and credible and that her ties to her familiar way of life back in Ethiopia are abidingly strong. This further indicates the visa applicant will not breach the mandatory or discretionary conditions imposed on her visa if were granted.

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

31. The oral evidence indicates that that the review applicant came to Australia as a dependent on her sister’s partner visa in 2011, along with her other sister and his niece. They gave oral evidence that they became separated from their parents while in a refugee settlement in Sudan. The Tribunal accepts this to be the case. While this may have been an unorthodox or unusual pathway towards permanent settlement to Australia, there was no evidence that it was unlawful or unmeritorious or that it is a significant risk factor in the visa applicant’s intention not to stay temporarily in Australia on a visitor visa.

32. There is no information that the review applicant or his sisters have ever breached conditions on their earlier visas or that they applied or sponsored for visas on spurious or vexatious grounds.  There is no evidence that the review applicant tried to permanently migrate his mother to Australia in earlier visa applications. Had this been the intention of the review and visa applicants, it would have been reasonable to expect earlier applications would have been lodged soon after the visa applicant’s children obtained permanent residency more than ten years ago. There is insufficient evidence not to take on face value the visa applicant’s credible claim that it was more economical and convenient in having the visa applicant visit Australia, rather than her children and grandchildren travel to Ethiopia.

33. The review applicant also made credible written and oral claims that he was willing to provide surety for his mother’s visitor visa, although this has not been required by the Department.

34. In summary, the Tribunal finds that the visa applicant has credible and compelling reasons to visit her family temporarily and to return to her country for material and cultural reasons.

35. When cumulatively considering the available evidence and with regard to the economic and political situation in Ethiopia, the Tribunal is unable to locate sufficient evidence and risk factors which outweigh the visa applicant’s incentives to temporarily stay in Australia on a visitor visa in favour of those incentives in seeking longer term or permanent residency in Australia.

36. 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

37. 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.

    Brendan Darcy
    Member