CATCHWORDS: Review of visa refusal - Subclass 686 - genuine visit - adequate funds

DECISION: The Tribunal remits the application made by the visa applicant for a Long Stay (Visitor) (Class TN) visa to the Department of Immigration and Multicultural and Indigenous Affairs, for reconsideration with the direction that the visa applicant meets the following criteria for a subclass 686 (Tourist (Long Stay)) visa:

* paragraphs 686.221(2)(a), (c) and (g) of Schedule 2.

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate). Mrs Julienne ZOA MEYO'O (the visa applicant), a national of Cameroon, born on 25 December 1944, applied for a Long Stay (Visitor) (Class TN) visa on 13 March 2002. The delegate's decision to refuse to grant the visa was made on 10 April 2002.

2. Dr Robert ZOA MANGA (the review applicant) lodged an application for review with the Tribunal on 6 June 2002 (T1, f.3). The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The criteria and policy immediately relevant to this review are:

Part 686 of Schedule 2 to the Regulations

Policy Directions No 1 and 2 of 1996, issued by the Minister under section 499 of the Act

Procedures Advice Manual 3: Generic Guidelines H - Visitor visas

6. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

A photocopy of the Department's files (V/V Papers).

8. The visa applicant lodged her visa application at the Australian High Commission in Lagos. She claimed that she intended to visit Australia to attend the birth of her son's first child, due in June 2002, and also to meet her son's family-in-law. The application form indicated that she has no other immediate family in Cameroon. However, it also indicated that she is married. The visa applicant indicated that her relatives in Australia consisted of her son and daughter-in-law. She claimed that her son and daughter-in-law would provide her with accommodation and financial support during her visit. A copy of the review applicant's bank statement was provided as evidence of his financial status. The visa applicant indicated that she was unemployed.

9. Departmental movement records indicate that the visa applicant has not visited Australia before.

10. The delegate stated that the visa was not granted on the basis that a genuine visit was not intended. In coming to this conclusion, the delegate stated that the visa applicant did not have a reasonable level of financial resources to cover her trip.

11. The review applicant stated when lodging the application for review that the visa applicant intended a genuine visit. The review applicant stated that the visa applicant has strong incentive to return to Cameroon as she has a husband, 7 children, 14 grandchildren, an elderly parent, and a large extended family residing there. In contrast, he stated that he is his mother's only relative in Australia. The review applicant also claimed that he had adequate funds to support his mother during her intended visit. He claimed that he and his spouse have a combined income of over $105,000 per annum and that they also receive income from an investment property. The review applicant reiterated the claim that the intent of his mother's visit is to be present for the birth of her grandchild and to assist with child-care for the period of her visit. The review applicant submitted the following evidence in support of his application for review:

* Recent payslips for the review applicant and his spouse (T1,f.27);

* Documentary evidence of rental income received by the review applicant and his spouse (T1, f.15);

* An offer of employment letter to the review applicant, which states the salary offered to the review applicant (T1, f.14);

* A letter of support from a colleague of the review applicant (T1, f.12);

* A letter of support from the review applicant's parents-in-law (T1, f.9);

* A medical document which states that the review applicant's spouse is expecting the birth of her child in June 2002 (T1, f.10); and

* A copy of the review applicant's banks statement (T1, f.8).

12. Class TN contains one visa: the subclass 686 (Tourist (Long Stay)) visa. The criteria for a subclass 686 visa relevant to the Tribunal's consideration are:

* the visa applicant `seeks to visit Australia ... as a visitor ... for the purpose of visiting an Australian citizen or Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant; or for another purpose other than a purpose related to business or medical treatment' and 'has adequate funds, or access to adequate funds, for personal support during the visit' (clause 686.211 and paragraph 686.221(2)(a))

* the period of stay in Australia proposed in the application exceeds 3 months (subclause 686.211(3))

* the visa applicant satisfies the decision-maker that `the expressed intention of the [visa applicant] only to visit Australia is genuine' (paragraph 686.221(2)(c))

13. The Minister has issued directions under section 499 that are relevant to these criteria - Policy Direction No. 1 of 1996 in relation to `genuine visit', and Policy Direction No. 2 of 1996 in relation to `adequate funds'. Having regard to the criteria set out in the legislation and the considerations set out in those directions, the issues raised by this matter are discussed under the following headings:

The purpose of the visa applicant's visit, the duration of stay proposed and any other plans which the visa applicant has made for the visit, relative to the visa applicant's personal responsibilities and the financial means and earnings and the level of support assistance available to the visa applicant

The visa applicant intends to visit Australia to visit her son and be present for the birth of his child. The period of stay in Australia proposed in the application exceeded 3 months. The visa applicant intends to stay with her son and daughter-in-law and assist with the care of the newborn baby. It is claimed that the review applicant and his spouse will provide financial support to the visa applicant during her stay. The review applicant has provided documentary evidence that indicates that he and his spouse have the financial capacity to provide for the visa applicant for the length of her visit.

The level of personal, financial, employment and other commitments which may induce the visa applicant to return. Circumstances which may induce the visa applicant not to return

The visa applicant has a husband, 7 children, 14 children, an aged parent, and a large extended family in Cameroon whom will not be travelling with her. The review applicant is the visa applicant's only relative in Australia. The visa applicant is unemployed.

The credibility of the visa applicant in terms of character and conduct. Information disclosed in the visa application or otherwise obtained which indicates a reasonable likelihood that the applicant will not abide by visa conditions. The history of compliance with or breach of immigration law by the visa applicant. The history of dealings with the Department of any person or persons in Australia or usually resident in Australia who supports or support the visit of the visa applicant

There is no adverse information before the Tribunal. The Tribunal has before it very strong statements of support for the review applicant to have his mother visit Australia.

14. The visa applicant was unrepresented, but the review applicant made submissions on her behalf which are attached to the review application at T1, ff.27 with annexures.

15. The Tribunal has examined the material before it and taken into account the material submitted to it by the review applicant and has decided to proceed to a decision without the need to have a hearing.

* The visa applicant is seeking to travel to Australia for the purpose of visiting Dr Robert Magloire Zoa Manga, an Australian citizen, who is the visa applicant's son.

* The visa applicant is seeking to travel to Australia as a visitor for a purpose other than a purpose related to business or medical treatment, or to commencing, continuing or completing any studies or training.

* The visa applicant has adequate funds, or access to adequate funds, for personal support during the visit.

* The Tribunal is satisfied that the expressed intention of the visa applicant only to visit Australia is genuine

17. Given the findings made above, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for the visa. The Tribunal is not in a position to decide the remaining criteria.

18. Noting that the Tribunal does not have the power to make directions or recommendations in relation to these matters when it is remitting an application for a visa, the Tribunal is of the view that, if a visa is ultimately granted, consideration should be given to:

* imposing condition 8503 (limitation on grant of further visa while in Australia)

19. The Tribunal remits the application made by the visa applicant for a Long Stay (Visitor) (Class TN) visa to the Department of Immigration and Multicultural and Indigenous Affairs, for reconsideration with the direction that the visa applicant meets the following criteria for a subclass 686 (Tourist (Long Stay)) visa:

* paragraphs 686.221(2)(a), (c) and (g) of Schedule 2