1505010 (Migration)

[2015] AATA 3085

1505010 (Migration) [2015] AATA 3085 (15 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Marivic Wilcox

VISA APPLICANT:  Mr Danilo Cabrera

CASE NUMBER:  1505010

DIBP REFERENCE(S):  BCC2015/940376

MEMBER:Adrian Ho

DATE:15 July 2015

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 15 July 2015 at 6:01pm

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 30 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 16 March 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 appeared before the Tribunal on 14 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s Australian husband and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog 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 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. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister and brother. 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)).

10. On the evidence, the visa applicant has never held a substantive visa for Australia.  There are no considerations relevant to cl.600.211(a).

11. 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.

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

13. In written material, the parties conceded the visa applicant is not employed in the Philippines.  Their stated wish is for him to visit his sister, an Australian citizen, the review applicant and their brother, either a permanent resident or citizen.  They claim he has never been married or in a de facto relationship, but has a Filipino son, who will remain in the Philippines.

14. The delegate was not satisfied that the visa applicant would be sufficiently incentivised to return at the end of the permitted stay.

15. At hearing, the parties made the following points:

    a.Mrs Wilcox married Mr Wilcox in 1988 in the Philippines;

    b.They met through her uncle, an Australian who married her auntie;

    c.She came to Australia in December 1998, obtained permanent residence two years after, and was made a citizen in 1991;

    d.Her elder brother is a citizen and was sponsored by her for a skilled visa and works in electronics;

    e.Her sister, Ana, came on a visitor visa with her husband in 2008 (3 months visit) and 2009-2010 (6 months visit);

    f.Ana’s husband was a bus conductor at the time and he lost his job as a result of the long 6 month visit, even though he had the impression that the company was agreeable to that length of visit;

    g.Ana and her husband have a small convenience store now;

    h.Her brother, Ramon, visited Australia in 2005 or 2006 (3 months visit) with his wife and children remaining in the Philippines;

    i.Ramon has been working in the Middle East as a weilder;

    j.Their movement records will reflect that on each occasion they departed Australia before the end of the validity period;

    k.Her father, Lauro Cabrera (DOB 10 July), visited in 2009-2010 for a month on a 3-month visitor visa;

    l.Her brother, the visa applicant, is currently unemployed;

    m.When she returned to the Philippines in 1996 he was away working in building construction;

    n.Building construction is the only kind of work he had done and he had not completed high school;

    o.Her brother has a son, Nicko, who born of a non-ongoing relationship and was raised by Ana and the visa applicant;

    p.Nicko and the visa applicant live with Ana permanently;

    q.Nicko is working, but she is not sure in what occupation;

    r.As he is not working, she supports the visa applicant by sending him AUD 150 a month and he is also supported by Ana’s income from her shop;

    s.She encourages him to work, and did so on a visit back in 2012;

    t.She also returned in 2005 and 2011 (where she didn’t have a chance to talk to him);

    u.She said her brother wants to work, but doesn’t know what he wants to do;

    v.The purpose of the visit is so she and her elder brother can bond and give advice to their brother on employment, and also for him to see that the family’s circumstances are such that they cannot remit money to him indefinitely;

    w.She is a full time cleaner and her husband has been working as a machine operator at a zinc works for 38 years;

    x.She offered to place a security of AUD 5000;

    y.She will not let her brother remain in Australia and he has his son and nieces back in the Philippines.

16. Giving evidence by phone, the visa applicant made the following points:

    a.He wished to visit the place where his sister and brother in law live;

    b.He would wish for a visit of 3 months;

    c.Nicko, his son, works in a factory;

    d.He agreed he was working as a building labourer in 1996 when his sister visited from Australia;

    e.He stopped working in 2001 when the company closed down;

    f.Since then, in the last 14 years, he has been helping his sister in her shop;

    g.His sister has a small milkbar-type shop, which selling lollies, biscuits etc;

    h.He sometimes attends at the shop and helps his sister with cleaning the house;

    i.His sister doesn’t pay him for his time but he benefits from sharing in the food of the family and in the upkeep of the household;

    j.His sister’s husband also drives a tricycle to make money;

    k.Nicko didn’t finish high school as he could not afford to pay for it;

    l.His siblings at home and in Australia have helped out in raising Nicko;

    m.His sister in Australia sends him money, perhaps 5000 Pesos a month;

    n.He uses the money to help his sister with shopping;

    o.In the last 14 years he has done a few casual jobs ‘here and there’, but prefers to help his sister as there is no suitable work available;

    p.He described his area in Binan, Laguna (about 45 minutes by car to Manilla) as more like a village rather than a city;

    q.He learnt welding and believes he can do it, but couldn’t find any work in that field;

    r.He would not considering working in Australia, because the visa did not allow it;

    s.He last saw the sponsor in 2012, along with her husband and son, and Rodolfo some time before that.

    Findings

17. The evidence of the parties at hearing confirms the delegate’s finding that the visa applicant is and has been unemployed in the Philippines for a long time. 

18. His son is now an adult and working.

19. He lives with his sister, and apart from a few odd chores in the house and in her shop, he appears to be otherwise not usefully employed. 

20. The tribunal accepts he has attachments to his son, his sister, Ana, and her family and children.  All of them live together.  They provide him with some incentive to return after a visit to Australia.

21. The tribunal accepts that he is supported in part by remittances from Australia. 

22. He lives within an hour’s drive of Manilla and in his evidence was vague when referring to his attempts to find work over the last 14 years.  He has skills in labouring in the construction industry.  The tribunal finds that he has no great desire to work.  If any one factor would have encouraged him to work, it would be the raising of his only child.  That notwithstanding, he has not worked since his son (now 20) was 6 years of age. 

23. At hearing he demonstrated an understanding that he was not permitted to work on the visa and that if he breached visa conditions that would create difficulties for his sponsoring sister.  The tribunal considers that his lack of interest in work, spanning some 14 years, will likely extend to Australia. 

24. The Australian sponsor and her Australian husband are adamant that he will adhere to visa conditions and that he must return before the expiry of his visa.  Their credibility is premised on no less than four visits made by his siblings and father, which they say were all compliant visits.  The review applicant has successfully sponsored her elder brother for migration to Australia, and he is now an Australian citizen.

25. The movement records for Ramon Cabrera indicate he was granted a one year visitor visa in October 2006, and made a visit of less than 3 months within the visa validity period.

26. The movement records of Ana Espiritu confirm the claims of the parties at hearing; she departing both time on the last day of her visa validity. 

27. The historical compliance of close family members in their visits to Australia is supportive of the present application. 

28. The sponsor and her husband are employed in what might be described as occupations of modest income and their offer to place a modest security of AUD 5000 is therefore given some weight.

29. In weighing up these various factors, the tribunal acknowledges the concern of the delegate in the visa applicant’s long-term unemployment.  That is a factor which does not contribute to incentivise him to return. 

30. His only child and his sister’s household, of which he is a member, do provide some incentive for him to return.

31. The numerous compliant visits of close family members, the prospect of further visa refusals should he not comply, the offer to place a security deposit, and the tribunal’s finding that the applicant is not motivated to work generally, all weigh in favour of the proposition that the family and the visa applicant intend for him to comply with conditions.

32. The tribunal considers that the factors in support of the parties outweigh the factors against their claims and for the above reasons is satisfied that the visa applicant intends to comply with the above visa conditions. 

33. 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.

34. However, that is not to find that there is no chance the visa applicant will breach conditions.  If he in fact visits, the visa applicant will likely discover that he could achieve higher pay as a building labourer in Australia.  That is a prospect which might incentivise him to consider working and/or to overstay. For these reasons, the tribunal considers that the imposition of a security may be appropriate. 

    DECISION

35. 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.

    Adrian Ho
    Member