1513234 (Migration)

[2016] AATA 3437

1513234 (Migration) [2016] AATA 3437 (29 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Irene Bendong Giusti

VISA APPLICANT:  Miss Ellen Bendong

CASE NUMBER:  1513234

DIBP REFERENCE(S):  BCC2015/2442668

MEMBER:Meena Sripathy

DATE:29 February 2016

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 and

·cl.600.212 of Schedule 2 to the Regulations.

Statement made on 29 February 2016 at 9:43am

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 14 September 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 21 August 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, on the evidence provided, the delegate was concerned the applicant is motivated by other reasons rather than a genuine visit to Australia.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The following information was provided in the application forms.  The visa applicant is a 22 year single woman from Zamboanga Del Norte, Philippines. Her family comprises her parents and two brothers, who reside in the Philippines, and one sister, the review applicant, who resides in Australia. She is employed as a trainer at a Tourism Industry Training company for the past one year. The review applicant is the 33 year old sister of the visa applicant. She is an Australian permanent resident, holding a permanent spouse visa.  She is employed at a long day centre for the past one and a half years. The following documents were submitted in support of the application: a letter from the visa applicant’s employer, confirming her position and request for leave for one year; her birth certificate; invitation letter from her sister in Australia indicating the visa applicant would like to visit to meet her nieces and nephews, attend the christening, and assist with the care of, her new baby; sister’s payslips and bank statements; sister’s marriage certificate; birth certificate and passport showing her visa label.

7. The review applicant appeared before the Tribunal on 26 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s husband.

8. The Tribunal questioned the review applicant about her own background and circumstances, her family and the visa applicant’s circumstances in the Philippines. The Tribunal also spoke with the visa applicant and the review applicant’s husband. They gave their evidence in a straightforward and candid manner and their evidence was substantially consistent and supported by documents provided to the Department and contained in Departmental records before the Tribunal.  The Tribunal considers the applicants and witness were credible and honest and accepts their oral evidence on that basis.  Relevant details of the evidence provided are included in the discussion and findings below. 

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting her sister and her sister’s family, and meeting for the first time her sister’s two youngest children. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.  The Tribunal notes that the visa applicant requested a period of 12 months in her application.  During the hearing the Tribunal discussed with the review applicant and visa applicant why she wanted to stay for such a lengthy period, and put to her its concerns about whether this is consistent with her stated intention to visit her family and her ability to support herself.  The applicants were consistent in their responses.  They indicated that while they would like a 12 month period, so that the visa applicant can help the review applicant to care for her youngest child in her first year, and also visit the country, they would be happy with a shorter period.  The review applicant and visa applicant confirmed that she will be fully supported for her stay in Australia by the review applicant.  She will stay with her at her house, and all her food and other expenses will be covered by them.  The review applicant explained that she would like her sister to help her look after her baby at home while she is still so young, because she has to return to work. She explained that she only needs her sister’s help in this first year, and after her baby will attend child care so it is not an ongoing need. The Tribunal is satisfied, having considered the responses of the applicants’, that the stated purpose and duration of the visa is consistent with an intention to only visit for a temporary period for the purposes for which the visa is granted.

11. 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 so there is no relevant personal migration history to consider. 

12. 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. The Tribunal discussed with the review and visa applicant these and they indicated that the visa applicant would comply with these conditions.

13. The Tribunal has considered past visa compliance by the review applicant. The review applicant told the Tribunal she came to Australia on a Tourist visa to meet her husband’s family.  While here she fell pregnant, and lodged an onshore partner visa application.  She explained that she spoke with the Department about her circumstances and departed within the visa period on the first Tourist visa, and returned on a second Tourist visa.  Her evidence is consistent with Department records considered by the Tribunal. The Tribunal also observes that no other close family members have applied for, or been granted, visas for Australia so there is no visa compliance history of other relatives to consider. The Tribunal accepts that there is no adverse visa compliance history relating to the review applicant or any other relatives, and considers this is a factor in support of the likelihood of compliance by the visa applicant on this occasion. 

14. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal accepts, on the oral evidence of the parties and supporting documents, that the visa applicant is single and lives with her parents and one brother in Dipolog City, Philippines. She has another brother, who is married and has his own family.  This brother is currently living and working in Saudi Arabia, but his family remains in the Philippines. The visa applicant has qualifications in the hospitality sector and is working as a trainer in a tourism industry company, since August 2014.

15. The Tribunal discussed with each of the witnesses its concern that the visa applicant’s single status, age and relatively recent employment may not be strong incentives for her to return and may be incentives for her to consider working while here. It also discussed its concern that the review applicant’s family circumstances and need for support may also be a disincentive for the visa applicant to return home.  In response the review applicant stated that she would not allow her sister to breach conditions.  She understands the importance of having a good compliance record and it would make it difficult for her to return in future.  The review applicant indicated she is prepared to provide a financial security to guarantee her compliance and understands the consequences for her of non-compliance.  The visa applicant also indicated that she does not have any intentions of breaching the conditions.  She wants to return to the Philippines as she has work and her parents there and she wants to look after her parents. 

16. The review applicant also told the Tribunal that during her last visit to the Philippines in 2010, her son, who was around 2 years old, suffered an asthma attack and was seriously unwell.  It was very frightening for her and her husband and after this her husband told her that they would not be coming back to the Philippines until the children were older and more able to cope in terms of their health.  She misses her family very much and would really like her sister to visit and support her.  The review applicant’s husband confirmed this in his evidence to the Tribunal.  The Tribunal accepts this evidence and takes this circumstance into account in considering the visa applicant’s purpose and intentions. The review applicant also told the Tribunal her parents are not keen to travel to Australia because of their age. Her brother in the Philippines is not well and she would not seek for him to visit, and the other brother is already working overseas and has a family of her own, and so it is only her sister who is available and interested in visiting her.  The Tribunal considers that this is a relevant and compelling explanation for the significance of the visa applicant’s visit for the review applicant who has no other close family members in Australia. 

17. The Tribunal notes the absence of any past migration history of any relevant family members, but it also observes that there is no adverse information before it to indicate a likelihood of non-compliance. The visa applicant has strong family ties in terms of her elderly parents and brother and brother’s family in the Philippines, and a job there to return to, and it finds these are strong incentives for her return.  Additionally, it accepts the applicants are aware of adverse consequences for future visits to Australia in the event of non-compliance and this is a further incentive to comply with conditions.  In making these findings the Tribunal places significant weight on its assessment of the genuineness, sincerity and credibility of the review applicant and her husband and the visa applicant.

18. Additionally, a financial security can be requested for a suitable amount which will provide further incentive for compliance with visa conditions and the Tribunal accepts that forfeiture of the security together with a ban on future sponsorships are significant consequences for the review applicant in particular given her desire to maintain a favourable migration record and sponsor her sister to visit again in future.    

19. 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.

20. The Tribunal is also satisfied, on the evidence before it, that the visa applicant has access to adequate means to support herself during the period of her intended stay in Australia and the requirements of cl. 600.212 are met.

    DECISION

21. 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; and

    ·cl.600.212 of Schedule 2 to the Regulations.

    Meena Sripathy
    Member