1512203 (Migration)

[2016] AATA 3499

1512203 (Migration) [2016] AATA 3499 (7 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Norman Quinalayo

VISA APPLICANT:  Miss Armie Quinalayo

CASE NUMBER:  1512203

DIBP REFERENCE(S):  01057076

MEMBER:Antonio Dronjic

DATE:7 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 07 March 2016 at 5:06pm

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 4 August 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 10 July 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 because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal via telephone conferencing on 7 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

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. In the present case, the visa applicant seeks the visa for the purposes of visiting her brother and his family. 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)). There is no evidence that the visa applicant travelled to Australia previously.

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)). The Tribunal has discussed the matters relevant to cl.600.211 (b) and (c) below. The Tribunal made the following findings on the oral evidence and the documentary evidence available.

12. The review applicant arrived in Australia in March 2011 and in 2015 become an Australian citizen. He is married and has a child who is five months old. He works as a welder in South Hedland WA where he rents a house. His six sisters and parents live at Philippines. His only brother lives in Australia.

13. He confirmed that the visa applicant is 26 years of age and single. She owns a plot of land at Philippines. She has completed a degree in Business Administration and from 2012 to 2013 she worked for a pharmacy at the Philippines.

14. In May 2015, the visa applicant moved to and currently resides at Manila with her cousins. The review applicant claims that the visa applicant is employed as a full time employee by his business, Alliance in Motion Global, since August 2015. He claims that his sister is paid the equivalent of AUD 500 per month.  He explained that the business is involved in distribution of food supplements and is a multi-level marketing on-line business. He stated that his sister never signed any employment agreement with the business and that he is unable to produce any pay slips as evidence of payment of wages to his sister. He further stated that he is and has been paying his sister wages since mid-2014.

15. I inquired if he is paying this amounts directly to his sister’s bank account. The review applicant stated that he is sending money to his mother’s account as she looks after the financials. He further stated that he sends at least AUD2, 000 per month to his mother’s account. I noted that no documentary evidence in support of this claim was provided by the applicant.

16. I noted that the visa application was lodged with the department on 10 July 2015 and that the visa applicant did not claim to be living or working at Manila. I further noted that in his application, the visa applicant stated the different residential address from the one in Manila.

17. The review applicant explained that his sister was in the past managing his farm located in the province and was paid by him for that work. He further stated that the visa applicant will be living with him and his family during her proposed stay in Australia and that he will provide all financial assistance associated with her travel and stay in Australia. He indicated that he is willing to pay the security deposit if requested by Department and indicated that he will not allow her sister to stay in Australia illegally.

18. The review applicant stated that the last time he travelled to Philippines was in December 2014 for the duration of six weeks. He gave evidence that he maintains regular telephone contact with his sister, at least four times per week.

19. In her evidence, the visa applicant confirmed that she currently lives at Manila with her cousins. In addition to money she receives from her brother (the review applicant) he also pays for her food and rent.  She further stated that she is single and not employed. She explained that she is managing his brother’s business in Manila. I asked her to describe her job. She stated that she is organising seminars and looking for guest speakers. She is also finding people who will provide training at Building Business Academy. She stated that she works as a full time employee but did not sign any employment agreement with her employer. She stated that her mother is handling the financial side of the business and her mother is giving her AUD500 per month as allowance from her brother. She stated that she completed a degree in Business Administration in March 2012; that she worked at a pharmacy at Philippines in 2012 and 2013 but quit her job as her salary was the equivalent of AUD300.

20. I asked about her incentives to return to Philippines after completing her visit to Australia, if she is to be granted a visitors’ visa. She stated that she is managing his brother’s business and that she has parents, five sisters, relatives and friends living at Philippines.

21. Based on the evidence before it, 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.

22. The Tribunal finds that the visa applicant’s family ties in Philippines are limited to non-dependant relatives. There is little in the evidence that has been presented to the Tribunal to suggest that the visa applicant’s family in Philippines require her presence there due to any identified need, and the consequential support she provides to them. The visa applicant has two brothers living in Australia and this in my view, may serve as an incentive for the visa applicant to remain in Australia beyond the visa validity period.

23. Based on the evidence before me, I am not satisfied that the visa applicant has employment ties in Philippines that would serve as incentive for her return to Philippines after completing her visit to Australia. In her evidence she initially stated that she is not employed. She than stated that she works as a full time employee for her brother’s company. No evidence of employment was provided to the Tribunal. Both the review applicant and the visa applicant confirmed in their evidence that there is no employment agreement between the company and the visa applicant.

24. Based on the evidence before me, I am not satisfied that the visa applicant owns significant assets at Philippines. She did not present evidence of her savings or income. I am not satisfied that a plot of land owned by the visa applicant amounts to incentive to return to her home country as this asset could easily be liquidated and proceeds transferred to Australia.  Alternatively it would be open to the visa applicant to lease this plot of land.

25. I considered the visa applicant’s immigration history and note that she did not travel outside of Philippines in the past.

26. The Tribunal has also taken into account the disparity between the visa applicant’s limited incomes in Philippines, compared with the higher standard of living available in Australia. In considering such economic differences, the Tribunal has had regard to factors such as the visa applicant’s age and her past immigration history. Based on the evidence before it, on balance, the Tribunal is not satisfied that the visa applicant will abide by the conditions of the visa and not seek to work whilst in Australia or overstay the permitted period of the stay in Australia.

27. 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

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

    Antonio Dronjic
    Member