Wolde (Migration)

[2021] AATA 4106

Wolde (Migration) [2021] AATA 4106 (18 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ermias Abreha Wolde

VISA APPLICANT:  Mrs Belaynesh Abate Asfaw

CASE NUMBER:  1833685

HOME AFFAIRS REFERENCE(S):          BCC2018/3670502

MEMBER:Roslyn Smidt

DATE:18 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 18 October 2021 at  9.04AM

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – balance of family in Ethiopia – church involvement – disappearance of a daughter in Australia – current conflict in Ethiopia – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.212, 600.231; Schedule 8, Condition 8531

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 6 November 2018 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 27 September 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 (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 because she was not satisfied the applicant genuinely intended to remain in Australia for the temporary period allowed on a visitor visa.

5. The review applicant appeared before the Tribunal on 21 January 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 Amharic and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

   BACKGROUND

7. The review applicant is a married man in his late forties with two children.  He has lived  in Australia for some 15 years. The visa applicant is his mother. She is a 64-year-old widow from Addis Ababa in Ethiopia. 

8. The review applicant said that the visa applicant wished to visit Australia for three months. The visa applicant said that she wished to stay for up to six months.

9. The review applicant is employed as a truck driver and owns his own home.  One of his sisters also resides in Australia, but they have not been in contact for many years. He has visited his family in Ethiopia on numerous occasions, but none of his relatives have visited Australia. At the hearing he explained that this was partly because he believed their applications would likely be refused.

10. In her application the visa applicant said that she children and three siblings lived in Addis Ababa. The review applicant and another daughter relocated to Australia many years ago, but her daughter disappeared in 1998. She said that she wanted to visit her son and grandchildren and also wanted to speak to the police about her daughter, who is listed as missing. She said that her late husband had never wanted to travel so she was not able to leave Ethiopia while he was alive. She applied for a visitor visa for Australia in 2015 but it was refused because the delegate was not satisfied that she genuinely intended to leave with the allowed period.

11. The visa applicant said that she supported herself with income from renting out a residential property which she managed herself. She also owned some farming land which she rented and hired out her car from time to time. She had savings equivalent to about $25,000. In support of these claims she provided evidence of her ownership of a car and a bank statement showing regular deposits and withdrawals and a balance of 529,000 BIRR. No evidence relating to the ownership of property was provided.  She provided a character reference which states that she is actively involved with  her church. .

12. The visa applicant said that while Ethiopia was a poor country the situation in Addis Ababa where she lived was peaceful. Most of her family live in Addis Ababa and she was also deeply involved with her church. She said that she had no desire to live elsewhere.

13. At the hearing the review applicant said that his mother lived alone in Addis Ababa. His brothers and sisters were all married and lived nearby. Both of his brothers owned shops  and one operated a bus. They were all reasonably successful. He said that the visa applicant derived a rental income from three residential properties in Addis Ababa. He believed that she had savings of about $20,000, but he was not sure as she gave money to her family when they needed assistance.

14. The review applicant said that his siblings had a total of ten  school age children. He said that the visa applicant was in very good health and was involved with her children and grandchildren in a manner which was typical for these relationships. She is also involved with her church.

15. I advised the review applicant that it was my understanding that there had been a number of problems relating to civil unrest in Ethiopia in recent times. He said that these problems had not had a significant impact on his family in Addis Ababa as they are of Amhara ethnicity and do not oppose the current government. 

16. I asked the review applicant if he was aware of the conditions which would attach to his mother’s visa if it was granted. He said that he was aware that she could not remain in Australia and would not be entitled to medical care or any other benefits in Australia.  I advised him that in addition she the only visa she could apply for would be a protection visa. The review applicant said that his mother had no problems in Ethiopia and would not seek such a visa. I asked the review applicant if he understand the possible consequences for himself and his mother if she failed to comply with the conditions on her visa. He said that she might be deported and he would have difficulty sponsoring other family members to visit in future.

17. I asked the review applicant if he would like to add anything which would help me to understand why his mother would comply with the conditions which would attach to her visitor visa. He said that his mother was a very religious person and very attached to her church. In addition, most of her family live in Ethiopia and she would not have the same community or support in Australia.

18. The review applicant’s wife also provided evidence. In essence she confirmed the evidence given by her husband.

19. The visa applicant provided evidence at the hearing.  She said that she had always lived with one of her sons in Addis Ababa. He is married but has no children and works as a merchant. When asked she appeared to confirm that he was her only male child in Ethiopia. I noted that the review applicant had said that she had two sons in Addis Ababa. She said that she had understood that I was only asking about children in Addis Ababa and she had another son who had lived in Gondar for a long time. I asked if any of her sons owned a business in Addis Ababa. She said that they did not.

20. The visa applicant said that she had three married daughters and six grandchildren aged between 3 and 13 in Ethiopia. She saw her children and grandchildren at least once a week. Mostly they visited her, but sometimes she went to their houses. She bought clothes for her grandchildren, but their parents were responsible for most of their care and needs.

21. I asked the visa applicant if any of her children apart from the review applicant had left Ethiopia to live abroad. She said that nobody else had left. I observed that the visa applicant had told me that one of her daughters had also left Ethiopia. She confirmed that this was correct. I asked why she had told me that nobody had left. She said that her daughter had disappeared some 15 years ago so she did not consider this to be relevant to her application.

22. The visa applicant said that she received income of 15,000 BIRR a month from a rental property in a compound where five people live. She also earns rent from an apartment owned by her son and had small amount of savings, about 75,000 Birr (about $2,000).

23. The visa applicant said that the only time had left Ethiopia previously was in December 2019 when she went to Jerusalem for spiritual reasons.

24. After taking evidence from the visa applicant I asked the review applicant to comment on what appeared to be contradictions in the evidence they had provided. I noted that he  had told me his mother lived alone, while she said she lived with one of her sons. He said that two of his brothers lived in Addis Ababa and owned businesses there while she said that only one son lived in Addis Ababa and he did not own a business. The review applicant said that the brother who lived in Gondar spent much of his time in Addis Ababa, but he owned a furniture business in Gondar. He said that his mother and brother lived in a large house which his mother owned.

25. I observed that his mother also appeared to have only one rental property, not three as he had suggested and that she appeared to have a small amount of savings than he had suggested. He said that the property his mother mentioned contained three units and she also received rent from an apartment he owned.

26. The review applicant said that his mother was confused because she had never had to answer questions in a telephone interview before.

27. The review applicant said that he wanted his mother to have the opportunity to visit Australia and spend time with him and his family. He said that he could guarantee that his mother would not overstay her visa and remain in Australia and he would be prepared pay a large bond to support her case.

28. On 23 July 2021 the Tribunal wrote to the review applicant to ask if he wished to provide any additional information.

29. On 31 August 2021 the review applicant provided a submission in which he stated that his mother had been affected mentally and psychologically by the disappearance of his sister in 1998 and it was vital for her mental, physical and spiritual well-being that she be granted a visa to come to Australia so she could achieve some closure.

30. The review applicant also provided a letter from his wife which states that he (the review applicant)  is very concerned about his mother’s well-being because she is suffering from anxiety and depression related to the disappearance of her daughter in 1998. It states that these problems would be alleviated if the visa applicant was granted a visitor visa. This would also improve the review applicant’s health and well-being.

31. Finally, the review applicant provided a translation of a letter dated 5 August 2021 from visa applicant’s church in Addis Ababa which states that the visa applicant was mentally affected by the disappearance of her daughter and would benefit if she would come to Australia to look for her daughter and to spend time with her daughter (sic) and grandchildren in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

32. 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.

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

34. 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)).

35. The applicant has never travelled to Australia.

36. 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.

37. The applicant is 64 years old and does not speak English. I am satisfied that she would not work or study if she was granted a visitor visa.

38. Condition 8503 refers to an entitlement and does not require compliance.

39. After considering all of the evidence I am not satisfied that the visa application will comply with condition 8531.

40. While the visa applicant’s family and social ties in Addis Ababa provide significant incentives for her to return to Ethiopia the presence of the review applicant and his family in Australia and the uncertain future due to the current conflict between the government and the Tigrayan region in Ethiopia provide strong incentives for her to seek a way to remain in Australia. 

41. In addition, after considering all of the evidence, I am not satisfied that the applicants have been entirely frank in their dealings with the Tribunal which causes me to question the visa applicant’s intention.

42. I am concerned that the applicants have provided differing accounts of the expected duration of the visa applicants stay. The review applicant said that she wished to visit for three months, the visa applicant indicated that she hoped to stay for up to six months.

43. I am concerned that the applicants have provided differing accounts of the circumstances of the visa applicant and her family in Ethiopia. The review applicant said that his mother lived alone. The visa applicant said that she lived with one of her sons.  The review applicant said that all of his siblings were married and lived in Addis Ababa. The visa applicant said that one of her sons lived outside Addis Ababa. The review applicant said that his brothers owned businesses in Addis Ababa. The visa applicant said that neither of her sons owned a business in Addis Ababa.  The review applicant said that his mother had ten grandchildren in Addis Ababa. The visa applicant said that she had six grandchildren. When asked to comment on these inconsistences the review applicant said that his mother lived with one of his brothers, but it was a big house and while it was true that one of his brother lived in Gondar he spent a lot of time in Addis Ababa. I did not find these explanations convincing.

44. The evidence provided by the applicants regarding the visa applicant’s financial situation was confused and unpersuasive.

45. According to the written submissions provided with her initial application she derived an income from renting out a residential property, some farming land and sometimes her car and she had the equivalent of about $25,000 in savings. At the hearing the review applicant said that his mother derived rental income from three residential properties in Addis Ababa and he believed that she had savings of about $20,000. The visa applicant said that she received rent from one property and also from an apartment owned by the review applicant, but she only had savings of about $2,000. When asked to comment on these inconsistencies the visa applicant said that the house which his mother rented contained three separate units.

46. It is possible the applicants were referring to one building with three residences when speaking about visa applicant’s income. However, this does not explain why her initial application suggests that she rented out one residential property and some farming land. In addition, she has provided a copy of the registration for a car, no documentary evidence of ownership of any property has been provided. The visa applicant’s financial situation in Ethiopia remains unclear and her current savings suggest that she has limited means. While I acknowledge that the review applicant could and no doubt would provide for his mother during her time in Australia, I am concerned that the applicants appear not to have provided an entirely hones or accurate account of the visa applicant’s circumstances.

47. In her initial applicant the visa applicant said that she was anxious to come to Australia to speak to the police about her daughter who went missing in 1998. However, at the hearing she said that only one of her children had left Ethiopia. When I reminded her of her earlier evidence, she said that she did not believe her daughter was relevant because she had disappeared a long time ago. I find it very strange that the visa applicant would not mention her daughter when asked about children who had left Ethiopia if one of the reasons she wished to visit was a deep need to find out what had happened to her. During the hearing the review applicant said that his mother was in good health, which is at odds with the later submissions which suggest that she had suffered significant psychological problems since her daughter’s disappearance some 22 years ago and her apparent lack of concern for her daughter when this issue was discussed at the hearing.  While the issue before is me whether the visa applicant would comply with the conditions on her visa, not whether she has compelling reasons to visit Australia, I am concerned that the applicants do not appear to have been entirely frank when giving evidence about the disappearance of the visa applicant’s daughter and her reasons for wishing to visit Australia.

48. 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

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

    Roslyn Smidt
    Member