1503766 (Migration)

[2015] AATA 3224

1503766 (Migration) [2015] AATA 3224 (21 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Danielle Louise Woodbridge

VISA APPLICANT:  Miss Marie Sheena Ibanez

CASE NUMBER:  1503766

DIBP REFERENCE(S):  BCC2015/555424

MEMBER:Nicole Burns

DATE:21 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 21 July 2015 at 10:35am

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 13 March 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 19 February 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 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 (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.

5. The review applicant gave evidence and presented arguments in relation to the issues in her case via telephone on 16 June 2015. The Tribunal also received oral evidence from the visa applicant via telephone from the Philippines.

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

   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 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.

8. The visa applicant seeks the visa for the purposes of visiting her niece (the review applicant) and her sister and her sister’s children. 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 never travelled to Australia before and therefore cl.600.211(a) does not apply.

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 has also considered all other relevant matters (cl.600.211(c)).

12. The delegate was not satisfied the visa applicant had a genuine intention to only visit Australia and concluded that there was a likelihood the visa applicant would work, overstay, seek to remain in Australia, or apply for another temporary visa after arriving in Australia.  The delegate reached this conclusion because of concerns about the economic situation in the Philippines and the fact the visa applicant did not provide any evidence or information outlining her financial or employment situation in the Philippines.

13. At the Tribunal hearing the review applicant said the purpose of the visit is for the visa applicant to see her sister (who is married to the review applicant’s father) and meet her sister’s four young children.  The review applicant said she has never met the visa applicant before, and wants her to visit to get to know her.  She said the plan is for the visa applicant to come for six months.  The review applicant, who is a full time nurse, said she will pay for the visit.  She said the visa applicant will have her own room in the house the review applicant owns.  The review applicant said that currently three adults and seven children live in her house: that is herself, her father, her father’s wife (who is the visa applicant’s sister), her siblings aged 17, 12 and seven, and her half-siblings aged three, two, one and a newborn. 

14. Having regard to the evidence before it, including the review applicant and visa applicant’s oral evidence, for the reasons that follow in the Tribunal’s view there exist a number of factors that indicate that the visa applicant may not have a genuine intention to stay temporarily in Australia and not comply with the condition that she must not remain in Australia after the period of the permitted stay in Australia, and must not work in Australia. 

15. First the Tribunal is not satisfied that the visa applicant has sufficient employment ties in the Philippines which would provide an incentive for her to return there at the end of her stay. At the hearing she said she helps look after a piggery, purportedly owned by her family, works in her parents’ store on occasion, and also makes some money through ‘network marketing’ of healthcare products.  She said she earns around 20,000[1] pesos per month.  The visa applicant said her parents will look after the store if she visits Australia and she would need to talk to some people about looking after the piggery.  After the hearing the review applicant provided copies of photographs of the piggery; copies of photographs of the visa applicant purportedly working in the family store; a copy of a network marketing form (with the visa applicant’s name and signature); a selection of the (health-related) products the visa applicant purportedly sells; and a copy of the layout of the visa applicant’s mother’s land.  The Tribunal accepts that the visa applicant works in these roles as claimed but does not find that her various jobs – in isolation or when combined – constitute a significant incentive for her to return to the Philippines before the expiry of any visitor visa that may be granted, particularly given her parents are able to look after the store and the piggery. 

    [1] AUD573, as at 25 June 2015, >

    Second, at the hearing, the Tribunal discussed statistical information with the review applicant which indicated that Philippines passport holders had a higher than average non-return rate for those who travelled to Australia on visitor visas.[2] The Tribunal also discussed information which indicated that GDP per capita in Australia was approximately 25 times that of the Philippines[3] and that more than 10% of the population of the Philippines worked overseas[4]. The Tribunal indicated that this information raised general concerns that her aunt (the visa applicant) may seek to remain in Australia as other Philippines citizens had done, or may by inclined to work in Australia, as other Philippines citizens had done.  The review applicant did not comment specifically on these matters.

    [2] DIBP ‘Modified Non-Return Rate Quarterly Report Ending 30 June 2013’ at accessed 15 June 2015

    [3] World Bank ‘GDP per capita (current US$) – 2013’ at accessed  15 June 2015  

    [4] Commission on Filipinos Overseas ‘Stock Estimate of Overseas Filipinos – as at December 2012’ at accessed 15 June 2015 notes that over 10 million Filipinos live overseas; DFAT ‘The Philippines’ Country Fact Sheet at , accessed 15 June 2015

16. Finally, the Tribunal is also concerned that the visa applicant’s primary purpose for visiting Australia is to help care for her sister’s young children.  Even if this work is unpaid, it is considered ‘work’, defined in regulation 1.03 as ‘an activity that, in Australia, normally attracts remuneration.’  When this matter was discussed at the hearing the review applicant reiterated that the purpose of the visit is to get to know the visa applicant and for her to have a holiday.  The review applicant also stated that the visa applicant’s sister does not work, and is looking after her four children full time.  Whilst that may be the case, the Tribunal notes that the visa applicant’s sister has four children under the age of three, including a newborn.  The Tribunal also notes that when asked about her specific holiday plans in Australia, the visa applicant’s response was that she just wanted to visit her sister and her children and to help her out.  The Tribunal also notes that the length of stay requested – i.e. six months – is more consistent with an intention to undertake childcare than just to visit family temporarily.  For these reasons the Tribunal is concerned that the visa applicant intends to undertake this work if she visits Australia, which means she would not comply with condition 8101. 

17. The Tribunal notes and accepts that the visa applicant has family members in the Philippines – her parents and five siblings – as well as extended family and that this constitutes a reasonably strong incentive to return to the Philippines before the expiry of any visa that may be granted.  However, this fact does not overcome the significant concerns in this case, as discussed. 

18. In summary, the Tribunal is not satisfied that the visa applicant has sufficient employment ties in the Philippines which would provide an incentive for her to return there at the end of her stay.  Based on the country information regarding the economic situation in the Philippines and given more than 10% of the population live overseas, the Tribunal has concerns that the visa applicant seeks to reside in Australia on a permanent basis, or will work in Australia.  The Tribunal also considers the fact that her sister has four children under the age of three to care for, acts as incentive for the visa applicant to work in Australia in terms of providing child care.  The nature of the visa applicant’s work and the presence of family members in the Philippines do not persuade the Tribunal that she genuinely intends to stay temporarily in Australia, when balanced against her other circumstances.

19. 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

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

    Nicole Burns
    Member