1505519 (Migration)

[2015] AATA 3447

1505519 (Migration) [2015] AATA 3447 (14 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jesusa Blake

VISA APPLICANTS:  Ms Arianne Trixie Dumale Dela Rosa
Mr Antonio Jr Dumale Dela Rosa

CASE NUMBER:  1505519

DIBP REFERENCE(S):  BCC2015/1077514

MEMBER:Glen Cranwell

DATE:14 August 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in relation to the second named visa applicant.

Statement made on 21 August 2015 at 11:27am

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 10 April 2015 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 30 March 2015. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl.600.211.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. In the present case, the visa applicants seek the visas for the purposes of visiting the review applicant, who is their aunt.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

7. 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)).

8. The visa applicants have not previously held visas to visit Australia.

9. 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.

10. The visa applicants applied for visas, along with their mother, for the purpose of visiting the review applicant and their sister, Maria Antonette Dela Rosa-Bryant.  Their sister was due to give birth to her second child on 18 July 2015, which was during the period of the proposed visit.  The visa applicants’ mother’s application was granted on 28 April 2015.

11. The delegate’s concerns related to the visa applicants’ absences from their employment for a period of 3 months.

12. The first named visa applicant’s occupation is as a “Nurse Reliever”.  She provided evidence of her employment, together with approval of leave for 90 days.  Also provided was evidence of a joint bank account with her mother, showing the presence of funds.

13. The second named visa applicant’s occupation is “Hopgraiser/Farmer”.  He has a partner and son, who he will be leaving behind in the Philippines.  Another brother and his partner’s mother will help his partner look after the farm while he is away. 

14. The Tribunal is satisfied that the visa applicants have made credible arrangements to be absent from their respective employments for the period of the visa.  The visa applicants understandably wish to visit with their aunt and, in particular, their sister as she gives birth to her second child.

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

16. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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.

17. However, having reached this conclusion, the Tribunal notes that the review applicant has only lodged one review application in relation to both visa applicant visa refusals.  The Tribunal refers to r.4.12(4) as to combined review applications:

    If:

    (a)    a person has nominated or sponsored 2 or more members of a family unit in respect of their primary applications for visas of a kind referred to in subsection 338(5) of the Act; and

    (b)    the Minister's decisions in respect of 2 or more of the members of that family unit are that a visa not be granted; and

    (c)    the Minister's decisions are MRT-reviewable decisions;

    the nominator or sponsor may combine his or her applications for review by the Tribunal of the Minister's decisions in respect of each of the members of the family unit to whom the Minister refused to grant a visa.

18. The first and second named visa applicants are not members of the same family unit, as under r.1.12 such a person must be a dependent of the family head. The evidence provided at the hearing is that the second named visa applicant does not live in the same household as either the first named visa applicant or their mother, and is not dependent on either.  Thus the Tribunal finds that he is not a member of the family unit of the first named visa applicant.

19. This means that the review applicant needed to have lodged a separate review application in respect of the second named visa applicant for there to be a valid review application.

    DECISION

20. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

21. The Tribunal does not have jurisdiction in relation to the second named visa applicant.

    Glen Cranwell
    Member