Tribunali (Migration)

[2019] AATA 405

Tribunali (Migration) [2019] AATA 405 (25 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Daly Bolongo Tribunali

VISA APPLICANT:  Mr Litolongo Alain Tribunali

CASE NUMBER:  1715390

HOME AFFAIRS REFERENCE(S):           BCC2017/1439064

MEMBER:Christine Kannis

DATE:25 January 2019

PLACE OF DECISION:  Perth

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 25 January 2019 at 7:23am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – family visit – incentives to return home – political and security uncertainty in the Democratic Republic of Congo – strong family and financial ties – 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 9 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 20 April 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 visa 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 he had not provided any evidence of previous travel to countries with similar migration laws as Australia and had not provided evidence of any compelling ties to his home country as incentives for him to return and comply with the visa conditions.

5. The review applicant appeared before the Tribunal on 22 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife, Ms Jessie Bakenga.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 he has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by him was subject; whether he intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

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

9. 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)). In this case, the visa applicant has never held a visa to Australia and there are no considerations relevant to cl.600.211(a).

10. 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

11. There is no information before the Tribunal to suggest that the visa applicant would engage in any work or study or training in Australia.  Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa conditions 8101 and 8201. 

12. The Tribunal had regard to a Statutory Declaration made by the review applicant on 19 April 2017 in which he said he would provide accommodation and food to the visa applicant during his three week stay in Australia. He said the visa applicant had agreed to take care of his own airfares and other minor expenses during his visit.

13. In the Application for a Visitor Short Stay Visa the visa applicant indicated his stay in Australia would be self-funded and said he would have AUD$1,500 to cover minor sight-seeing expenses. He said his accommodation and food would be provided by the review applicant.

14. In the Application for a Visitor Short Stay Visa the visa applicant indicated he was employed by the FBN Bank in the Democratic Republic of Congo (DCR). He said he is an Operations Officer and that he has been employed by the FBN Bank for six years. He provided what appeared to be his FBN Bank pay slips during the period from August 2016 to January 2017.    

15. In a Form 1419 completed by the visa applicant he said he wanted to visit Australia because he has a brother and a sister living in Western Australia with their children and he would like to meet them for the first time. He said he had been separated from his brother for more than 20 years. The visa applicant indicated that his wife would not be travelling to Australia with him.

16. The review applicant told the Tribunal that he was a refugee in Uganda before coming to Australia and said he has not seen the visa applicant since 1997 or 1998. He said he is married and has four children and they have not met the visa applicant. He has a four bedroom home and the visa applicant will be able to use the guest bedroom. The review applicant said he will provide the visa applicant’s food during his proposed stay in Australia.

17. The review applicant confirmed that the visa applicant wishes to stay in Australia for three weeks. He was unable to provide the dates of the visa applicant’s proposed stay because the visa applicant would need to seek and obtain leave from his employer.

18. The review applicant said the visa applicant owns his home in the province of Ituri. He also owns another property which the review applicant understands is rented. The review applicant provided documentary proof of the visa applicant’s property ownership in the DCR however the document was in the French language and a certified translated copy was not provided.

19. The review applicant said the visa applicant’s wife runs a business in Ituri. His understanding is that it is a shop which sells groceries and clothing. Ms Bakenga said she speaks to the visa applicant’s wife by phone and she has told her about her travel for the shop including travel to Dubai.

20. The review applicant told the Tribunal that he had not been able to contact the visa applicant to arrange for him to attend the hearing by phone because the internet has been closed down due to the recent election results and political unrest.

21. The Tribunal noted the current Department of Foreign Affairs (DFAT) advice to Australians thinking of travelling to the DCR is not to travel due to the very high risk. DFAT has identified high risk areas of ongoing armed conflict which include the province of Ituri. DFAT says the political and security situation remain uncertain after the announcement of the provisional election results on 10 January 2019. It says demonstrations and civil unrest could occur and that internet access and mobile phone networks have been reduced or cut off.

22. Noting that the review applicant did not arrange for the visa applicant to attend the hearing by phone due to internet difficulties, and having regard to the DFAT information, the Tribunal asked the review applicant why he believes the visa applicant will depart Australia at the end of his stay. The review applicant said the visa applicant’s life is in the DCR. He said his house, his wife and his job there and he would not be able to have the same lifestyle in Australia. He has discussed the visa applicant’s proposed stay with him many times and the visa applicant has never suggested that he will not depart Australia and return to the DCR.

23. Ms Bakenga told the Tribunal that despite the civil and political unrest in the DCR there are people living there who lead better lives than some people in Australia. She said she has spoken to the visa applicant’s wife on several occasions and it appears they have a settled and happy life in the DCR. She said they have not been able to have children and this has increased the visa applicant’s wish to meet the review applicant’s children.

24. The review applicant told the Tribunal he would not travel to the DCR with his wife and children because it would be costly and he would not place them at risk. He said DFAT”s warning is to Australian travellers and said the visa applicant is happy with his life in the DCR.

25. The Tribunal acknowledges the concern raised by DFAT regarding the political and civil unrest in the DCR.  The Tribunal discussed this with the review applicant and Ms Bakenga at hearing and was persuaded by their responses. The Tribunal accepts that the visa applicant is living a settled and happy life with his wife in the DCR despite the unrest reported in the country. 

26. The Tribunal finds the visa applicant’s family and financial ties in the DCR outweigh the family ties he has in Australia.  The Tribunal considers the presence of his wife in his own country as well as his employment and property ownership provide a strong incentive for him to return home at the end of a visit to Australia.

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

28. 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

29. 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.

    Christine Kannis
    Member