Woldemeskel (Migration)

[2021] AATA 5246

Woldemeskel (Migration) [2021] AATA 5246 (28 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Samuel Gebru Woldemeskel

VISA APPLICANT:  Ms Tsehay Shekur

CASE NUMBER:  1930249

HOME AFFAIRS REFERENCE(S):          BCC2019/4518370

MEMBER:David Crawshay

DATE:28 October 2021

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 28 October 2021 at 11:38am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – no previous travel to Australia – intention to comply with visa conditions – all other relevant matters – widowed and retired – carer for a number of children in Ethiopia – lessor of property in Ethiopia – Gurage ethnicity – member of the Orthodox Church – 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 Home Affairs on 3 October 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 10 September 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 visa 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 the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purposes for which the visa is granted. A copy of the delegate’s decision was provided to the Tribunal before hearing.

5. The review applicant appeared before the Tribunal on 18 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The review applicant and visa applicant will hereafter collectively be referred to as “the parties”. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. It was convened as a remote hearing using Microsoft Teams video.

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 the visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the visa applicant was subject; whether the visa applicant 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 visiting her son, the review applicant, and his family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)). The visa applicant has not held a visa to visit Australia, substantive or otherwise, and this aspect is given no weight.

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.600.612):

    ·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.

11. The Tribunal accepts based on the evidence and on the profile of the visa applicant that she will comply with these conditions of her visa (to the extent that they are able to be complied with and not, in the case of condition 8503, an entitlement). This aspect is given some weight.

12. The Tribunal has also considered all other relevant matters (cl.600.211(c)). It has considered that the visa applicant is a widow living in Addis Ababa. It has considered that she has been retired since 2010. It heard from the parties at hearing that the visa applicant has six children in Ethiopia. The review applicant said that there were 15 grandchildren there; the visa applicant claimed she had 18 grandchildren. The Tribunal does not attribute any adverse weight to this inconsistency, given the inclusive nature of the visa applicant’s family (see below). The parties each stated that the visa applicant has one child in Australia – the review applicant. The Tribunal accepts this evidence and accepts that the visa applicant has many members of her immediate family in Ethiopia as against her son, the review applicant, in Australia.

13. The Tribunal has considered that the visa applicant is claimed to be the carer for a number of children. These are said by the parties to comprise two nieces – one of whom is the daughter of her deceased brother and another who has been entrusted into her care – and two grandchildren whose parents work full-time. Additionally, the Tribunal heard from the review applicant that a person identified as his sister and that sister’s son were living there. When giving her evidence, the visa applicant told the Tribunal that this person was not the visa applicant’s daughter (and therefore the review applicant’s sister) but was a niece who was given over to her when very young. The review applicant explained to the Tribunal that because this niece was given over at a young age, he had come to recognise her as his sister. The Tribunal accepts this explanation. The parties at hearing were able to give substantially similar evidence about the identities of these people and the way in which they were related to the visa applicant. Ordinarily, the Tribunal would accord significant weight to this evidence given the substantial similarities between the parties. However, elsewhere during the hearing the Tribunal became aware from the visa applicant that she was reading from a document, for which she needed help from a relative in the room with her. The weight given to this evidence is therefore diminished although not completely.

14. The Tribunal heard from the parties at hearing that the visa applicant receives rental income from shops located on a compound she owns in Addis Ababa. According to the parties, these shops include two concerned with motor repairs and motor parts and one café. Additionally, the visa applicant told the Tribunal that there was a fourth shop that sold groceries.

15. Following the hearing, on 27 October 2021 the Tribunal received documents from the review applicant that included lease agreements between the visa applicant and four other parties over a property that corresponds with the visa applicant’s property. The leases allow for a grocery store, garage, car oil and spare parts shop and a flower store, and are all current. Among the documents is a title deed over the same property issued on “20/12/08”. The Tribunal accepts that this is the date in the Ethiopian calendar and that it corresponds with 26 August 2016 in the Gregorian calendar. This is consistent with the issue date of the title deed listed in all four of the leases. The leases all bear the seal of the “Federal Documents Authentication Registration Agency”. The title deed was purportedly issued by the “Addis Ababa City Government Land Development and Management Bureau”.

16. The Tribunal accepts that these documents are genuine. It accepts that the visa applicant is a lessor over the claimed property and is receiving rent from four different sources. It accepts that she receives around 50,000ETB which equates to around $1,420 each month in overall rents. It accepts that this would represent a major incentive for her to return at the end of any visa period imposed on her. This aspect is given weight.

17. The Tribunal has considered the ethnic and religious attributes of the visa applicant. In this regard, the parties told the Tribunal that she is Gurage by ethnicity and a believer in the Orthodox Church. The Tribunal notes that the visa applicant’s place of birth according to her passport in Muhur which is located in the “Gurage Zone” of Ethiopia. Moreover, the parties gave these answers unprompted and in a spontaneous way and it accepts that she is a member of the Gurage and of the Orthodox Church, to which roughly two-fifths of the Gurage belong.

18. At hearing, the review applicant was asked if the visa applicant experienced any official or unofficial discrimination, and he replied “not really”. When quizzed on giving what the Tribunal considered an equivocal answer, he said that there was no discrimination. He said that the Gurage people are hard-working people and can be very rich. When it was put to him that hard-working and wealthy people can often be the target of discrimination owing to resentment from others, he replied that in older times the Gurage were discriminated against because they were poor but not nowadays when they are wealthier.

19. The Tribunal has considered the review applicant’s response as well as available country information. In relation to the latter, it notes that a country information report on Ethiopia by the Department of Foreign Affairs and Trade and dated 12 August 2020 stated as follows in relation to the Gurage:

    DFAT assesses the ethnic Gurage face a low risk of official or societal discrimination, including in parts of the country where they are a minority.[1]

    [1] Department of Foreign Affairs and Trade, “DFAT Country Information Report: Ethiopia” (12 August 2020), [3.20], last accessed on 18 October 2021.

20. The Tribunal accepts that the current hostilities in Ethiopia do not involve the Gurage, and accepts that the DFAT country information report is current despite its being more-than-one year old. It accepts that the visa applicant does not suffer from any official or unofficial discrimination or is oppressed because of her ethnicity or religion. It accepts that she would be highly unlikely to claim protection based on these attributes. This is relevant because, although the visa applicant has applied for a Visitor visa in the Sponsored Family stream, which offers the added surety of condition 8503 (“no further stay”) among other things, that condition expressly excludes protection visas. The Tribunal accords very little adverse weight to the fact of the visa applicant being part of the Gurage ethnic minority.

21. In addition to condition 8503, the Visitor visa Sponsored Family stream also imposes condition 8531 (“not to remain”), and gives the ability for the Department to levy a bond on the review applicant as sponsor to ensure the return of the visa applicant. It accepts that these measures provide a heightened level of surety that the visa applicant will depart within the validity of any period imposed on her visitor visa. The Tribunal gives these aspects weight in its consideration of whether the visa applicant will stay temporarily in Australia.

22. The Tribunal has considered and weighed the evidence in front of it when making the above findings. It finds that, although the visa applicant is widowed and retired, she appears to be carer for a number of family members such as grandchildren and nieces and derives an income from rental payments on shops she leases out. Moreover, she is applying to travel on a visa which has strict conditions placed on it, and her profile makes her a low risk of seeking protection.

23. 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

24. 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.

    David Crawshay
    Member