1502919 (Migration)

[2015] AATA 3420

1502919 (Migration) [2015] AATA 3420 (17 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Merlin Alain Carrasco Trujillo

VISA APPLICANT:  Mrs Eulogia Celestina Trujillo Esparaza

CASE NUMBER:  1502919

DIBP REFERENCE(S):  BCC2015/374671

MEMBER:Dione Dimitriadis

DATE:17 August 2015

PLACE OF DECISION:  Sydney

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 17 August 2015 at 8:56am

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 12 February 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 30 January 2015. 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.600.211 because the delegate was not satisfied that the visa applicant’s expressed intention only to stay temporarily in Australia is genuine.  

5. The review applicant appeared before the Tribunal on 19 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa applicant is a 63 year old Peruvian national who resides in Peru. The visa applicant was born in Peru. The visa applicant is married and has two adult sons and a grandchild who live in Peru. The visa applicant has two sons, a daughter and a grandson who live in Australia.   

8. The purpose of the visit is for the visa applicant to spend time with her children and grandson in Australia.  

9. The visa applicant stated that she wished to visit Australia from 3 March 2015 to 3 September 2015.

10. The visa applicant stated that she will maintain herself financially in Australia because her two sons, who are in full-time employment in Australia, will cover all her costs and expenses related to her travel and temporary stay in Australia.

11. The visa applicant provided copies of pages from her Peruvian passport and payslips for the review applicant and his brother, Elvis.

12. The review applicant provided a letter stating that he is an Australian citizen of Peruvian origin and he is inviting his mother to spend a vacation with the review applicant, the visa applicant’s other children and her grandson in Australia. The visa applicant has never been to Australia. She is married but the review applicant’s father is not able to accompany her for personal and financial reasons.  The visa applicant lives permanently in Peru and has never travelled to other countries. The review applicant’s brother in Australia is a permanent resident and their sister is in Australia on a Student visa. The review applicant visited his parents last year and they met his son. The review applicant invited the visa applicant to Australia as a birthday present and to see Australia and their way of life here. The review applicant’s parents are modest people and do not possess the financial means necessary for the trip. However, the review applicant and his brother, who are in permanent full-time employment, will be covering all the costs.

13. The review applicant applied for review with the Tribunal on 27 February 2015 and provided a copy of the delegate’s decision record. The review applicant provided a statement and stated that he first entered Australia for residence in September 2001.  The review applicant stated that his mother is 62 years old and at that age it is not likely for a mother to have dependent children. The visa applicant’s application for a Visitor visa is genuine. The visa applicant would love to have the opportunity to visit and spend time with her children and grandson in Australia. She is not the sort of person who would remain in Australia illegally. As an Australian citizen, the review applicant finds it difficult to understand that he is denied the right to have his aged mother visit him in Australia.

14. The Tribunal wrote to the review applicant on 22 May 2015 and invited him to attend the hearing on 19 June 2015. The Tribunal invited the review applicant to provide documents or information in support of his application including any additional evidence to support the visa applicant’s claim that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

15. On 12 June 2015 the Tribunal received from the review applicant a number of documents including pay advices and bank statements in the name of the review applicant and his brother, Elvis Eugenio Carrasco Trujillo and Notice of assessment from the Australian Taxation office in the name of the review applicant.  The review applicant stated that the purpose of the visa applicant’s stay in Australia is for the visa applicant to have a holiday and spend a few months with her three children who reside in Australia and with her grandson. The visa applicant is unable to provide evidence of personal funds or assets of her own. His parents are modest people and do not possess the financial means necessary for this trip. The visa applicant recently turned 63 years of age and has been a housewife all her life. The review applicant and his brother, who is an Australian resident, will be covering all the costs and expenses related to the visa applicant’s travel and stay in Australia. There are five children in the review applicant’s family. Two adult single brothers live permanently in Peru in their parents’ home. The review applicant has a brother who is a permanent resident of Australia. The review applicant has a sister who is in Australia on a Student visa. The visa applicant’s application for a Visitor visa is genuine. The visa applicant is comfortable and satisfied with her way of life in Peru where she has her husband and two children. She would love to have the opportunity to visit and spend time with her children and grandson in Australia. Because of her age, she is not the sort of person who would remain in Australia illegally.

    The Tribunal hearing

16. At the hearing the Tribunal informed the review applicant of the requirements of cl.600.211.

17. The review applicant stated that the visa applicant has never been to Australia before. The review applicant works in IT and he also has a cleaning job.

18. The review applicant stated that the visa applicant lives with her husband and two adult sons in the same house in Lima, Peru. The visa applicant has two adult sons and a daughter in Australia. The visa applicant has one grandchild in Peru. This child is the review applicant’s sister’s child. The review applicant’s parents have custody of the review applicant’s sister’s child.

19. The review applicant stated that the visa applicant’s daughter is on a Student visa and is studying in Australia. The review applicant came to Australia on a Spouse visa. His brother also came to Australia on a Spouse visa. The review applicant divorced in 2005. The review applicant has a son with his second partner. His son will be two years old next month.

20. The visa applicant is not employed. She is a housewife. The review applicant’s father has a small internet café and he supports the visa applicant financially. The Tribunal asked the review applicant if the visa applicant has any major assets in Peru. The review applicant stated that the visa applicant has a house together with his father. The Tribunal brought to the applicant's attention that he has not provided evidence of this. The review applicant stated that the Tribunal had not asked for this and if he had been asked he could have sent this in. The Tribunal brought to the review applicant's attention that the Tribunal had asked for evidence to support his claim that the visa applicant genuinely intends to stay temporarily in Australia and he could have provided this evidence to show that the visa applicant has these ties in Peru. The review applicant stated that there is evidence that the visa applicant and the review applicant’s father own the house.  His father owns the café. It is in his name.

21. The review applicant stated that he sent a letter to the Department of Immigration that he would provide all the funding for the visa applicant’s travel because she has never worked. The Tribunal informed the review applicant that it is looking at whether the visa applicant has ties to Peru that will encourage her to return to Peru after an approved stay.

22. The review applicant stated that the visa applicant has to look after her grandson in Peru. The review applicant has invited the visa applicant to Australia for a short while but then she will go back to Peru to look after her other grandson. The review applicant only invited his mother and not his father, because one of them has to stay to look after the child. The review applicant stated that he had not mentioned before that his parents had custody of their grandchild in Peru. The review applicant stated that he wanted to invite the visa applicant to spend 6 months here over Mother’s Day and her birthday.

23. The Tribunal asked the review applicant about the visa applicant’s involvement with her grandchild in Peru. The review applicant stated that the visa applicant does the “normal stuff” together with the review applicant’s father.  The review applicant’s father takes the child to school. The child is 9 years old. The Tribunal asked if there was a court order relating to the custody or if there was simply an arrangement. The review applicant stated that they have a court order with consent from the parents to take care of the child. The child is a boy and his father and mother are both in Australia. They came out a while ago. The child does not live with the review applicant’s sister any more.

24. The Tribunal asked the review applicant how the visa applicant is able to leave the child for 6 months. The review applicant stated that, when he applied for the visa, he applied for up to 6 months, so it could have been 1 month or 2 months. It would depend on how long the visa applicant felt she was able to stay. The Tribunal asked the review applicant how the visa applicant is able to leave the child.  The review applicant stated that he wanted to invite her to Australia as a gift. She has not been to Australia. He wanted to do this for her. He knew that she would be leaving the child there but this was a gift that his brother and he wanted to give to her. She could come here and if she felt bad about the baby then she could go back.

25. The Tribunal asked the review applicant who looks after the child if the visa applicant is here and the review applicant’s father is working. The review applicant stated that his father has other people who work in the business.

26. The review applicant stated that he is prepared to lodge a security.

27. The review applicant stated that the visa applicant’s sister came to Australia in about November 2014 (sic) and returned in February/March 2015 (sic). Her name is Martha Trujillo. The visa applicant has never travelled outside Peru.

28. The review applicant is inviting the visa applicant now because he was working and saving money and living his life before. Now he has something to offer his mother. His mother was very sad when her application was refused. She was very excited to come. Her sister was approved and came. The visa applicant’s sister, who came to Australia, has a grandson here.

29. The review applicant stated that the law in Peru is that, if you are married, you each own half the property. The Tribunal informed the review applicant that there would be more weight if the property was also in the visa applicant’s name. The review applicant stated that the visa applicant has a bank account but does not use it much because he sends her money by Western Union. The Tribunal allowed the review applicant until 3 July 2015 to provide further documents.

30. On 1 July 2015 Tribunal received a letter from the review applicant who stated that the document about the ownership of the property only mentions his father and not his mother. This is not an unusual situation in Peru where the husband is the provider and the wife often, and more so in the past, is a housewife in charge of house chores. His parents have always considered that the house, that they live in, belongs to both of them. The visa applicant has never been in paid employment as the review applicant’s father was the provider. The review applicant enclosed a Power of Attorney dated 18 November 2008 by the visa applicant’s daughter, Maria Elisabeth Carrasco Trujillo, and the daughter’s husband, appointing the visa applicant and the visa applicant’s husband as their attorneys to represent the child and to sign documents on behalf of the child and authorising the review applicant’s parents to represent the child legally before the authorities and other institutions while under their care. The review applicant also provided evidence of the marriage of the visa applicant to Eugenio Odilon Carrasco Velasquez and sale of property to Eugenio Odilon Carrasco Velasquez.

31. 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.

32. In the present case, the visa applicant seeks the visa for the purposes of visiting her children. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

33. 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 previously travelled to Australia.  There is no evidence of non-compliance with the conditions of the last substantive visa held, or any subsequent bridging visa.

34. 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.600.611(3)).

    ·    8101 – must not work in Australia

    ·    8201 – must not engage in study or training in Australia for more than 3 months.

35. The review applicant stated at the hearing that the visa applicant has been a housewife all her life and has never worked. The visa applicant is 63 years old. The Tribunal is satisfied that the visa applicant will not work in Australia and will not study.  The Tribunal is satisfied that the visa applicant will comply with conditions 8101 and 8201.

36. The Tribunal has considered the visa applicant’s personal ties to Peru. She has lived all her life in Peru and her husband and two adult sons live with her in Peru. They all live in the same house in Lima. As well, the visa applicant looks after the child of her daughter who is studying in Australia. The review applicant provided a translated copy of the Power of Attorney which the visa applicant’s daughter signed in 2008 giving the visa applicant and the visa applicant’s husband the power and right to represent the child. The Tribunal is satisfied that the visa applicant has strong personal ties to Peru which will encourage her to return to Peru after an approved stay.

37. The visa applicant has two sons, a daughter and a grandson living in Australia. The Tribunal is satisfied that the visa applicant also has strong personal ties to Australia.

38. The visa applicant does not work and is a housewife. She is financially supported by her husband who will remain in Peru while the visa applicant comes to Australia. Her son also sends money to Peru for the visa applicant. The visa applicant does not have property in her name. Her husband owns the property where she lives in Peru with her husband. The review applicant gave evidence that the property is in his father’s name but this is not an unusual situation in Peru where the husband is the provider and the wife often, and more so in the past, is a housewife in charge of household chores. His parents have always considered that the house in which they live belongs to both of them. The visa applicant has never been in paid employment as the review applicant’s father was the provider. The visa applicant does not have business or employment ties in her name but her husband owns the house where she lives with her husband and two sons. Her financial ties to Peru are derived through the ownership of the house owned by her husband.

39. In this case, the Tribunal is satisfied that the visa applicant will return to Peru after an approved stay because of her strong personal ties and her financial ties to Peru. The Tribunal finds it significant that the visa applicant looks after her daughter’s child and has done so for a number of years. The visa applicant’s daughter came to study in Australia and signed a Power of Attorney appointing her parents to represent the child’s interests. The visa applicant has very strong personal ties with her husband, two children and the grandchild remaining there. 

40. The visa applicant has not travelled to Australia before. The review applicant has been in Australia since 2001. His parents have not visited Australia before. The review applicant gave evidence that the visa applicant’s sister came to Australia and departed before her visa ceased. The Tribunal accepts that the review applicant would like his mother to visit him, see his home and become acquainted with her grandchild here. 

41. Although the visa applicant does not have significant assets in Peru, she has her husband and grandchild for whom she is responsible. The visa applicant has strong personal ties to Peru. The Tribunal has considered all the evidence and is satisfied that the visa applicant genuinely intends to only stay here temporarily whilst she is the holder of a Subclass 600 visa. The Tribunal is satisfied that the visa applicant will return to Peru before her visa ceases because her husband, her two children and her grandchild, for whom she has responsibility, live there.

42. The Tribunal is satisfied that the visa applicant will stay temporarily in Australia. The Tribunal is satisfied on the evidence that the visa applicant will return to Peru after an approved visit. The Tribunal accepts that the visa applicant will not overstay her visa and will abide by visa conditions. 

43. In reaching this conclusion, the Tribunal has taken into account that the Department of Immigration can require a suitable security as a further incentive for visa compliance by the visa applicant. The review applicant gave evidence at the hearing that he is willing to lodge a security.

44. 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

1. 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.

   Dione Dimitriadis
   Member