1500620 (Migration)

[2015] AATA 3312

1500620 (Migration) [2015] AATA 3312 (11 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Marissa Padua

VISA APPLICANT:  Miss Marivic Canilang

CASE NUMBER:  1500620

DIBP REFERENCE:  01026577

MEMBER:Deborah Morgan

DATE:11 August 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 11 August 2015 at 9:57am

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 (the delegate) on 9 January 2015 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 17 December 2014. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the 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.600.213 because, being a person affected by the ‘risk factor’ (in Schedule 4 to the Regulations), she is required to satisfy a higher level of proof in relation to the genuine visitor requirement. The delegate failed to because satisfied on the evidence that the visa applicant had sufficient incentive to return to the Philippines within the term of any Subclass 600 visa granted to her.

5. The review applicant appeared before the Tribunal by video link on 4 August 2015 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The primary issue in this case is whether cl.600.213 is met by the visa applicant. It  requires the Tribunal, as decision maker, to be satisfied that the visa applicant meets Public Interest Criterion  4011 which states in part:

   4011(1) If the applicant is affected by the risk factor specified in subclause (2), the applicant satisfies the Minister that, having regard to the applicant's circumstances in the applicant's country of usual residence, there is very little likelihood that the applicant will remain after the expiry of any period during which the applicant might be authorised to remain after entry.

   [4011] (2)      An applicant is affected by the risk factor referred to in subclause (1) if:

   (a)      during the period of 5 years immediately preceding the application, the applicant has applied for a visa for the purpose of permanent residence in Australia; or …..

8. The visa applicant was born on in the Philippines on 28 January 1981. She claimed she was single.

9. She sought a stay of two months in Australia. She named the review applicant as her sister in the visa application and claimed her purpose in visiting was to spend time with the review applicant, her husband and two infant children.

10. She provided evidence of her employment since June 2012with Rural Bank of Central Pangasinan as General Ledger - Book Keeper.

11. She provided evidence of her savings in Metrobank as at 11 March 2014.

12. She claimed that her sister’s husband would be responsible for her expenses during her stay in Australia.

13. The Tribunal has incorporated relevant parts of the review applicant’s oral evidence into its findings that follow.

    Findings

14. In the present case, the visa applicant seeks the visa for the purposes of visiting her sister, the review applicant and her family in Western Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

15. The Tribunal requested the review applicant to provide evidence of the filial relationship between her and the visa applicant. Birth certificates provided after the hearing satisfy the Tribunal that the visa applicant is the sister of the review applicant.

16. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal first considers whether she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

17. The visa applicant in this case was granted a Subclass 676 Visitor visa on 8 March 2011 and arrived in Australia under that visa on 20 March 2011. The Tribunal noted that the visa applicant departed Australia before her Subclass 676 visa expired on 20 June 2011. There is no evidence before the Tribunal that the visa applicant breached any of the visa conditions to which her Subclass 676 visa was subject in 2011.

18. 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:

    ·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.

19. The Tribunal received oral evidence from the review applicant about the visa applicant’s intention to comply with the four conditions listed above. The review applicant told the Tribunal that the visa applicant will spend her time assisting her with her children and won’t have time to work or study. The review applicant said the visa applicant would not apply for another visa while she is in Australia and that she would depart before her visa expired.

    Other relevant matters

20. The Tribunal has considered all other relevant matters as it is required to do under cl.600.211(c). They are as follows. The review applicant informed the Tribunal that the visa applicant resigned from her employment a few months ago and is not currently working. She said that the visa applicant is presently preparing for an accountant’s licence exam. The visa applicant resides in San Carlos City with her maternal aunt, a cousin and a niece. The visa applicant remains single. She is supported financially by her two brothers in Canada, one of whom the review applicant said is a citizen and the other has permanent residence.

21. A further requirement for this visa is that the visa applicant meets certain public interest criteria, including Public Interest Criterion (PIC) 4011: cl.600.213. As set out above, PIC 4011 provides that, if the applicant is affected by the risk factor specified in PIC 4011(2), the applicant must satisfy the Minister that, having regard to the applicant’s circumstances in the applicant’s country of usual residence, there is very little likelihood that the applicant will remain in Australia beyond the authorised period of stay.

22. An applicant is affected by the risk factor if, during the period of 5 years immediately preceding the application, the applicant has applied for a visa for the purpose of permanent residence in Australia: PIC 4011(2)(a). As stated by the delegate, the visa applicant applied for permanent residence under a Remaining Relative visa in 2012 which was refused by the Department. As she applied for a Remaining Relative visa 3 years ago which is within the 5 years referred to in PIC 4011(2), the Tribunal therefore finds that the visa applicant is affected by the risk factor.

23. Having regard to the visa applicant’s circumstances in the Philippines, the evidence that the visa applicant is not working means there is less incentive for her to return to the Philippines than there was when she had employment.

24. The visa applicant has none of her immediate family in the Philippines because her parents are dead, her two brothers reside in Canada and her sister resides in Australia. The Tribunal is satisfied the visa applicant has very few relatives in the Philippines who would provide an material incentive for her to return to her country of birth.

25. The Tribunal is satisfied on the evidence that the visa applicant is single and therefore she does not have an incentive to return to the Philippines for relationship reasons.

26. There is evidence that the visa applicant has accumulated some savings but they do not form an incentive for her to return to the Philippines because she could transfer them to Australia. 

27. The review applicant told the Tribunal that incentives for the visa applicant to return to the Philippines are their late father’s mango plantation and rice field which provide funds at harvest time. The review applicant’s claims in relation to the mango and rice harvests are new and no documentary evidence has been submitted about them. The Tribunal gives those claims negligible weight and does not accept that they provide a meaningful incentive for the visa applicant to return to the Philippines at the end of any period of stay.

28. The review applicant also told the Tribunal that the visa applicant will return to the Philippines in memory of their parents and because it is her country of birth. As none of the visa applicant’s siblings have remained in the Philippines for those reasons, the Tribunal gives this claim no weight.

29. The review applicant told the Tribunal that her mother-in-law is presently visiting on a Subclass 600 visa and is due to depart on 22 August 2015. She said they plan to apply for an extension of her visa so that the review applicant’s husband can accompany his mother back to the Philippines. The review applicant’s evidence that they plan to apply for another visa for her mother-in-law indicates a family willingness to breach conditions 8503 and 8531 to which the review applicant’s mother-in-law’s visa would be subject.

30. The Tribunal has considered the visa applicant’s circumstances carefully. The existence of a quite recent application for permanent migration to Australia and the lack of incentives to cause her to return to the Philippines combine such that the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia.

31. For the above reasons, the Tribunal is satisfied on the evidence that the likelihood that the visa applicant will remain in Australia beyond the visa period is significantly greater than ‘very little likelihood’. The visa applicant therefore does not meet PIC 4011 as required by cl.600.211(c).

32. 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

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

    Deborah Morgan
    Member