1616049 (Migration)

[2016] AATA 4621

1616049 (Migration) [2016] AATA 4621 (27 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Joseph Roel Sevilla Bibera

VISA APPLICANTS:  Mr Joseph Quiachon Bibera
Mrs Hermenigilda Sevilla Bibera

CASE NUMBER:  1616049

DIBP REFERENCE(S):  BCC2016/2959041

MEMBER:Melissa McAdam

DATE:27 October 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.232 of Schedule 2 to the Regulations.

Statement made on 27 October 2016 at 2:26pm

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 29 September 2016 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 6 September 2016. 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 that the visa applicant should satisfy cl.600.232, which states:

   600.232  

   (1)  One of subclauses (2) to (4) applies.

   (2)  The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and:

   (a)  a relative of the applicant; or

   (b)  a relative of another applicant who is a member of the family unit of the applicant; or

   (c)  a relative of another applicant in relation to whom the applicant is a member of the family unit.

   (3)  The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who:

   (a)  is a member of the Commonwealth Parliament or a State Parliament; or

   (b)  is a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory; or

   (c)  holds the office of mayor.

   (4)  The applicant is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.

4. The visa applicants provided the following information in their visa application:

   a.The visa applicants are husband and wife. They are citizens of the Philippines.

   b.They wish to visit Australia for up to three months, including from 19 to 27 November 2016, to celebrate their wedding anniversary with their children here.

   c.Both the visa applicants were born in the Philippines in 1956.

   d.The review applicant is the visa applicants’ son. He is an Australian permanent resident, born on 16 January 1984. He is the sponsor for their Visitor visa applications.

5. The delegate refused to grant the visas, on the basis that the visa applicants did not provide evidence they meet cl.600.232.

6. On 29 September 2016 the review applicant submitted a copy of his Philippines Birth Certificate, issued by the Philippines National Statistics office, to the Tribunal. This Certificate records that his parents are the visa applicants.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.232 is met, the relevant part of which requires the Tribunal to be satisfied the visa applicants are sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and a relative of the visa applicants.

8. In this case both visa applicants are being sponsored by the review applicant.

9. ‘Relative’ is define by r.1.03 of the Migration Regulations as follows:

   "relative", in relation to a person, means:

   (a)  in the case of an applicant for a Subclass 200 (Refugee) visa or a protection visa:

   (i)  a close relative; or

   (ii)  a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew; or

   (iii)  a first or second cousin; or

   (b)  in any other case:

   (i)  a close relative; or

   (ii)  a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

10. A ‘close relative’ is define by r.1.03 of the Migration Regulations as follows:

    "close relative " , in relation to a person, means:

    (a)  the spouse or de facto partner of the person; or

    (b)  a child, parent, brother or sister of the person; or

    (c)  a step-child, step-brother or step-sister of the person.

11. There is nothing about the copy of the Birth Certificate submitted by the review applicant, or any other evidence before the Tribunal, to indicate that it is not a copy of a genuine Birth Certificate. The information in the Birth certificate accords with provided  by the applicants in the visa application.  The Tribunal therefore accepts it is a copy of the review applicant’s Birth Certificate.

12. Based on this evidence the Tribunal accepts that the review applicant is the child of both of the visa applicants. He is therefore a ‘close relative’ and so a ‘relative’ of the visa applicants.

13. The Tribunal also accepts that the review applicant is 32 years old and therefore over the age of 18.

14. According to the Department’s records the review applicant was granted a subclass 189 Skilled Independent Visa, giving him permanent residence in Australia, on 13 October 2015. The Tribunal is therefore satisfied the review applicant is an Australian permanent resident.

15. The review applicant’s Movement Records show that he first entered Australia on 2 June 2013.  Since that time he has been outside Australia on four occasions, for periods totalling 73 days. The longest period he was outside Australia was 25 days. These records therefore show that the review applicant has been residing in Australia for over three years, apart from a period of two and a half months.  Based on this evidence the Tribunal is satisfied the review applicant can be considered settled in Australia.

16. Based on the above reasoning the Tribunal finds that the visa applicants are both sponsored by a settled Australian permanent resident, who is at least 18 and a relative of the visa applicants.

17. The Tribunal is therefore satisfied that the requirements of cl.600.232 are met.

    DECISION

18. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.232 of Schedule 2 to the Regulations.

    Melissa McAdam
    Member