Ugwu (Migration)

[2019] AATA 2498

Ugwu (Migration) [2019] AATA 2498 (27 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Amadi Christian Ugwu

VISA APPLICANT:  Ms Sussana Nkechinyere Ugwu

CASE NUMBER:  1808401

HOME AFFAIRS REFERENCE(S):           BCC2018/721731

MEMBER:Brendan Darcy

DATE:27 May 2019

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; and

· cl.600.232 of Schedule 2 to the Regulations.

Statement made on 27 May 2019 at 2:57pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream– visiting family members– genuine intention to stay temporarily – strong incentives to depart Australia – sufficient evidence to verify the relationship between applicants –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.232, 600.231

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 5 March 2018 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 February 2018. 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.

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 there were more incentives for the applicant not to leave Australia than return to her home country within the prescribed visa period.

5. The delegate made a further adverse finding about the applicant being a sponsor for the purposes of cl.600.232.

6. The review applicant appeared before the Tribunal on 27 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Igbo and English languages.

7. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   Background

9. The review applicant, born in Nigeria on 13 October 1983, first arrived in Australia in 2009 on a visitor visa.  After applying for a prospective marriage (Class TO) visa while offshore, the review applicant returned to Australia on 2009 a second time and was gained permanent residency in 2012 while holding a partner visa in 2012. He was granted Australian citizenship on 26 January 2014. He remains married to the same sponsoring spouse when he granted the visa and has two Australian citizen children.

10. The visa applicant was born on 28 February 1952 in Nigeria, where she has resided all her life.

11. The review applicant claims to be the visa applicant’s biological son and both claim to belong to the Igbo ethnicity from southern east Nigeria. The visa applicant applied for this visitor visa under review on 12 February 2018. Having been refused by the delegate acting on behalf of the Minister, the review applicant validly applied to have the refusal decision reviewed by the Tribunal on 27 March 2018 with the decision record attached.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. In the present case, the visa applicant seeks the visa for the purposes of visiting her son, his spouse and her grandchildren. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

14. 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)).

15. The visa applicant has never visited Australia. Accordingly the Tribunal places no weight on clause 300.211(a) as relevant to its decision making.

16. 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.

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

18. The visa applicant has only never travelled to Australia but has never undertaken international travel.

19. During the hearing, the review applicant elaborated on the visa applicant’s family composition. The visa applicant is a widow who owns and operates with one of her daughters a provisions store. The review applicant is the one of six adult children residing outside of Nigeria. The visa applicant has eleven (11) grandchildren in Nigeria. The Tribunal accepts she is active as a grandmother in the lives of her children and grandchildren in Nigeria. With only one son and two grandchildren in Australia, the overwhelming balance of the visa applicant’s family resides in Nigeria. The Tribunal places considerable weight on this as an incentive to return to Nigeria without breaching any of the conditions on her visa.

20. Furthermore, the Tribunal accepts the visa applicant lives a relatively comfortable life in Nigeria where she owns property and maintains the property of the visa applicant. The Tribunal also accepts as a compelling reason that the cost of the review applicant to travel to Nigeria with his family is considerably more expensive than the visa applicant visiting Australia on a temporary basis.

21. The review applicant does not have a history of visa non-compliance at all since his arrival in Australia. He has remained with the same spouse since he was granted a partner visa. At the scheduled hearing, his spouse and parents-in-law attended strongly indicated to the Tribunal that the review applicant remains in a genuine spousal relationship with a supportive extended family in Australia since his prospective marriage visa was granted in 2009. He has sound employment and he and his spouse have acquired a mortgage which they are employing to build a home of their own in suburban Melbourne.

22. The fact remains Nigeria, with a population over 180 million, continues to have many security issues in its north and widespread problems with high levels of poverty and corruption across this complex and diverse nation.

23. However, it is the overall view of the Tribunal that these concerns regarding risk factors not to temporarily visit Australia or to breach visa conditions are outweighed by those other positive aspects of the case, as discussed.  The Tribunal also gives significant weight to the lack of history of non-compliance with regards to review applicant’s visa history, his stable relationship with his spouse and the balance of the visa applicant’s family living in Nigeria as strong incentives to depart Australia in an orderly and timely manner without breaching visa conditions.

24. Considering the visa applicant’s circumstances overall and for the reasons set out above, the Tribunal is satisfied that the visa applicant’s stated intention to visit Australia temporarily for the express purpose of visiting her biological son and grandchildren is genuine.

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.

    Clause 600.232: Sponsorship

26. The Tribunal also notes that the delegate made an additional finding that there was not information for the delegate to be satisfied that the review applicant was the biological son of the visa applicant, thus failing to satisfy the time of application criterion regarding sponsorship: cl.600.232.

27. As part of this review application, the visa applicant has submitted an affidavit attesting to her parenthood of the review applicant. It is noted the review applicant was granted visas, including a permanent residency visa, as well as Australian citizenship based on available document provided at the time of lodgement by earlier primary decision makers. In the past, the Department has been satisfied about the review applicant’s Nigerian citizenship and identity. In the context of the review applicant’s overall compliant migration history and noting that statutory declarations of age, parenthood and Nigerian citizens fulfils the Nigerian authorities’ criteria in granting ECPWA Travel Certificates and Nigerian passports,[1] the Tribunal finds there is sufficient evidence to verify the review applicant is the biological son of the visa applicant and is a prescribed person at the time of application for the purposes of this visa’s sponsorship.

    [1] DFAT Country Information report: Nigeria 9 March 2018:

    5.26 The Economic Community of West African States (ECOWAS) is a regional grouping of fifteen African nations focused on economic integration. Nigerians can freely enter the fourteen member states covered by the ECOWAS Treaty with a Nigerian passport or an ECOWAS Travel Certificate. Nigerians also have a right of residence in all ECOWAS nations (see for further information).

    5.26 Nigerians can apply for an ECOWAS Travel Certificate from an NIS office. Applicants require less documentation to obtain the Certificate than to obtain a Nigerian passport. An applicant must provide photographs, a birth certificate or statutory declaration of age, a letter of introduction from an employer and a letter of confirmation of Nigerian citizenship from the applicant's local government chairman.

28. Accordingly, the Tribunal is satisfied that the visa  applicant has met the legal requirements in cl.600.232 of the Regulations

    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; and

    ·cl.600.232 of Schedule 2 to the Regulations.

    Brendan Darcy
    Member