2012152 (Migration)

[2022] AATA 701

2012152 (Migration) [2022] AATA 701 (18 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012152

MEMBER:SM Justin Owen

DATE:18 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Sponsored Parent (Temporary) (Class GH) Subclass 870 visa.

Statement made on 18 February 2022 at 10:38am

CATCHWORDS

MIGRATION – Sponsored Parent (Temporary) (Class GH) visa – Subclass 870 Sponsored Parent (Temporary) – genuine temporary stay – lengthy period of unlawful residence – multiple unsuccessful visa applications – limited family responsibilities in Korea – young family in Australia – familiarity with Australian immigration laws – intention to stay in Australia permanently – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 870.226

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 8 July 2020 to refuse to grant the visa applicant a Sponsored Parent (Temporary) (Class GH) Subclass 870 visa under s. 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 10 December 2019. The delegate refused to grant the visa on the basis that the delegate considered the visa applicant had failed to demonstrate that they genuinely intended to stay in Australia on a temporary basis. The delegate gave particular weight to the considerable period of time the visa applicant had spent in Australia unlawfully since arriving in Australia in September 1994, overstaying his three-month visitor visa.  As outlined in the delegate’s decision the review applicant provided the Tribunal, the visa applicant remained in Australia until November 2018 when he and his wife returned to Korea, overstaying his three-month Visitor visa by more than 24 years.  The delegate considered the visa applicant’s submissions that he and his wife have responsibilities in Korea looking after his mother-in-law, and subsequently only intended to visit Australia temporarily to visit their son, the review applicant.  The visa applicant also submitted that he and his wife’s immigration history should not play a pivotal role in determining an application for a visa that was aimed at allowing parents to reunite with their children.  The delegate disagreed, noting cl. 870.226 stipulates that applicants must demonstrate a genuine intention to stay in Australia temporarily, and in the context of such an assessment, all relevant factors needed to be considered in making such a determination including the immigration history of the visa applicant.  The delegate noted the multiple unsuccessful applications lodged by the visa applicant; remained unpersuaded that caring responsibilities for the visa applicant’s mother-in-law were acting as a motivation to return to Korea; and considered the visa applicant had not demonstrated an intention to stay in Australia on a temporary basis.  Subsequently, the visa applicant did not meet cl. 870.226.       

3. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by videoconference.  The Tribunal is satisfied that the review applicant was given a fair opportunity to give evidence and present arguments.

4. The review applicant appeared before the Tribunal on 9 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant [named] (who is the review applicant’s father) and the review applicant’s wife [named] (who has her own case before the Tribunal – 2012153). The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The review applicant was represented in relation to the review. The representative attended the hearing.

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 the present case is whether the visa applicant genuinely intends to stay in Australia temporarily.

8. The visa applicant in his written submissions has claimed that the reason behind applying for an 870 visa is to be with his son, the review applicant, who was only recently married and planning for a baby in the future.  It is claimed the visa applicant and his wife only wish to visit Australia temporarily.

9. The Tribunal has taken into account the oral testimony of the visa applicant, the visa applicant’s wife [named], and the review applicant.  The Tribunal has also taken into account the written submissions the visa applicant has previously submitted to the delegate. 

10. The Tribunal noted the information contained in the delegate’s decision pertaining to the extensive period between 1994 and 2018 inclusive when the visa applicant remained in Australia.  The Tribunal noted the evidence before it was that the visa applicant had remained in Australia unlawfully for the vast majority of this period, despite only arriving in Australia in 1994 on a three-month Tourist visa.   The Tribunal asked the visa applicant to explain why he and his wife remained in Australia unlawfully for such an extensive period.

11. The visa applicant explained that he and his wife lacked knowledge of Australia’s immigration laws.  He stated that he had not pursued professional advice, instead relying on the advice of friends in the Korean community.  The visa applicant stated that after overstaying his visa, he did eventually obtain some advice, and after being told he could not progress his immigration status onshore, that he departed Australia in November 2018. 

12. The Tribunal asked the visa applicant about periods of time he was unlawful between November 1994 and September 1997; April 1999 and May 2001; December 2009 and May 2010; and between July 2010 and his departure from Australia.  The visa applicant stated it was difficult to recall the detail of each of these periods.  The visa applicant conceded he was aware he was unlawful.  He stated that after the marriage of his son, the review applicant, he wanted to resolve his immigration issues and hence departed Australia with his wife. 

13. The Tribunal has considered the visa applicant’s adverse immigration history in its consideration as to whether the visa applicant genuinely intends to stay in Australia on a temporary basis. 

14. The Tribunal considers the visa applicant’s immigration history is highly relevant to determining whether the visa applicant genuinely intends to stay in Australia on a temporary basis.  The Tribunal notes that cl. 870.226 clearly requires an applicant to demonstrate a genuine intention to stay in Australia temporarily, and to take into account all relevant factors that illustrate such an intention.  One way this can be ascertained is through the consideration of the visa applicant’s immigration history.        

15. The visa applicant submitted that he remained in Australia for such an extensive period out of the best interests of his son, the review applicant.  He stated that he couldn’t return to Korea with his son, who was born in [year] just prior to the family’s arrival in Australia, because he was initially too young, didn’t speak Korean and then he had concerns that any return would interfere with the review applicant’s studies.  The visa applicant at hearing stated that both his mother and father deceased in Korea during the 24-year period he remained in Australia.  He stated he was unable to return to Korea to see his parents before they passed, stating his son was young so he was unable to depart. 

16. The Tribunal does not accept the visa applicant’s submissions that the review applicant’s interests in Australia as a child, then as an adult, meant he was simply unable to return to Korea, including to see his elderly parents.  The Tribunal considers instead it speaks of a strong and determined intention of the visa applicant to remain in Australia permanently, despite any legal requirements or impediments. The Tribunal considers this behaviour, over a 24 year period, relevant in its determination as to whether the visa applicant intends to genuinely stay temporarily in Australia should they be granted an 870 Sponsored Parent visa. 

17. The Tribunal has also considered the visa applicant’s submissions that his lack of awareness of Australia’s immigration laws precipitated his long-term periods of unlawfulness in Australia.  The Tribunal does not accept this submission.  The evidence suggests that the visa applicant lodged multiple unsuccessful visa applications including for a Protection and a Child visa.  As outlined in the delegate’s decision record, the visa applicant lodged unsuccessful applications for Ministerial Intervention, judicial review, and held a wide range of Bridging visas D, C, and E.  The visa applicant does of course have the right to seek judicial review and Ministerial Intervention.  The Tribunal nevertheless considers the myriad of applications lodged suggests that the visa applicant had some awareness and familiarity with both Australia’s immigration laws and his unlawful status.  The Tribunal considers the visa applicant’s actions suggest a desire to remain in Australia permanently through the lodgement of multiple applications and the use of process.  The Tribunal considers such actions speak to the visa applicant’s intention to stay in Australia permanently. 

18. The Tribunal at hearing asked the visa applicant what his motivation was for applying for an 870 Sponsored Parent visa, and whether it was to remain in Australia on a permanent basis.  The visa applicant replied that he has friends and colleagues in Australia.  He stated that his son is recently married and he and his wife could help and provide stability to his son.  The visa applicant said that he understood the visa was a temporary visa and he would not wish to jeopardise the subclass 143 Contributory Parent visa he and his wife had applied for in 2019 that would grant them permanent residency.  The Tribunal accepts the visa applicant wishes to see his son.  The Tribunal also accepts the applicant’s earlier written submission to the delegate that the lodgement of a 143 visa application is not a ground to find that the visa applicant does not meet the intention for a temporary stay in Australia.  The Tribunal nevertheless holds considerable concerns pertaining to whether the visa applicant would actually return to Korea to obtain the grant of a 143 visa.  Whilst the visa applicant in 2019 paid the cost of lodging such a visa application, the processing charge for the second stage of the visa is prohibitively expensive, with of course no guarantee that the visa applicant would be granted the visa.  The visa applicant in his oral testimony discussed how he and his wife would like to support his son.  The visa applicant was with his son from [birth] until 2018 continually.  The Tribunal considers the desire of the visa applicant to recommence his (and his wife’s) life alongside that of his son is a strong incentive to remain in Australia permanently.  Combined with the visa applicant’s demonstrated long-term disregard for Australia’s immigration laws, and willingness to engage in multiple unmeritorious applications to remain in Australia, the Tribunal is not satisfied that the visa applicant genuinely intends to stay in Australia temporarily.

19. The visa applicant has also submitted that the care he and his wife provide to his mother-in-law, [named], is a strong motivation for he and his wife to return to Korea.  He has stated that they have resided with [his mother-in-law] since May 2019.  The Tribunal notes that the visa applicant and his wife provided testimony from the home of the visa applicant’s mother-in-law.  The parties have stated that they are currently living with the visa applicant’s mother-in-law, a statement the Tribunal accepts.  The Tribunal has considered whether their residence with the visa applicant’s mother-in-law, and the support that the parties provide her, is a motivation to return to Korea. Whilst the Tribunal accepts that the visa applicant and his wife provide support to his mother-in-law, the Tribunal does not accept that this care is evidence of the visa applicant’s genuine intention to return to Korea.  The visa applicant and his wife each stated that they have siblings in Korea.  The visa applicant’s wife stated that her mother is not ill, rather they provide support to her.  The Tribunal notes that the visa applicant has stated that he and his wife have pursued an 870 Sponsored Parent (Temporary) visa to enable them to spend time in Australia with their son, the review applicant; a situation that suggests the visa applicant’s [age]-year old mother-in-law will either receive support from other family members, or that she has a degree of self-sufficiency in the home and in caring for herself.  On the evidence before it, the Tribunal does not accept that the care the visa applicant and his wife are providing his mother-in-law is providing a strong incentive for the parties to return to Korea. The Tribunal furthermore notes that the visa applicant failed to return to Korea from Australia to see his own ageing parents before they deceased.  Whilst in his written submissions he now concedes his regret over this, the Tribunal gives greater weight to the visa applicant’s strongly expressed desire to be in Australia with the review applicant, and his delinquent immigration history over almost a quarter of a century that speaks, in the Tribunal’s opinion, to his future intentions.    

20. The Tribunal has taken into account the testimony of the review applicant and the visa applicant as well as the visa applicant’s wife.  The review applicant stated that he had no doubt that the visa applicant and his wife would stay in Australia temporarily.  He stated that he and his wife were trying for a child, and the visa applicant and his mother just wanted to be regular grandparents, taking the grandchildren to activities such as soccer and fishing.  He stated he and his wife worked full-time, so the visa applicant and his wife as grandparents were happy to assist.  The Tribunal understands the review applicant’s desire for the visa applicant and his mother to be in Australia to provide his wife (and future family) with support.  Such family support can be of significant assistance.  The Tribunal however considers the strong bonds that exist between the review applicant and the visa applicant – and the admission that he and his wife work full-time and would understandably value the practical assistance the visa applicant and his mother would provide – speaks to a strong possibility that the visa applicant would remain in Australia permanently.  The motivation – both emotional and practical – for the visa applicant to remain in Australia is strong. The Tribunal considers the ongoing support the visa applicant and his wife would provide is an incentive for the visa applicant to remain in Australia on a permanent basis.      

21. The visa applicant has previously provided a wide range of personal references from the visa applicant and his wife’s family, colleagues from Church, and friends that attest to the good character of the visa applicant and his wife.  The references have attested to the hardship the visa applicant and his wife have faced in being absent physically from their son.  The Tribunal accepts the separation has been difficult for all parties.  The Tribunal accepts the authors of such correspondence genuinely hold these views about the visa applicant and his wife.  The Tribunal notes the opinions expressed but considers that they provide little utility in the Tribunal’s consideration as to whether the visa applicant genuinely intends to stay in Australia on a temporary basis.  The correspondence in fact in some cases demonstrates the visa applicant’s strong personal relationships the visa applicant holds in Australia after almost a quarter of a century of residence which could operate as a further incentive to remain in Australia.                    

22. The applicant’s representative submitted at the hearing that the requirement that the visa applicant intends to remain in Australia on a temporary basis is a lower threshold than that pertaining to the grant of a temporary Visitor visa.  The Tribunal notes the submission but notes the requirements expressly stated in cl. 870.226 that the applicant “genuinely intends to stay in Australia temporarily”.  The Tribunal, in assessing whether the visa applicant meets this specific requirement, has taken into account all of the evidence before it.  This includes taking into consideration all relevant factors that demonstrate the presence or absence of this intention.  The visa applicant’s immigration history is especially relevant to this assessment.  The evidence suggests that the visa applicant remained in Australia unlawfully for around 5,000 days between 1994 and 2018.  The Tribunal has placed a considerable weight on such an adverse immigration history for almost a quarter of a century marked with unmeritorious applications and the use of continued delay tactics.  The Tribunal does not doubt the visa applicant’s love and consideration for his son, the review applicant, and his desire to return to Australia to be with his son as he pursues the next chapter in his own married family life.  On the basis however of all the evidence before it, the Tribunal is not satisfied that the visa applicant has demonstrated that he genuinely intends to stay in Australia on a temporary basis.

23. Accordingly, cl. 870.226 is not met by the visa applicant.

24. For the reasons above, the criteria for the grant of a Subclass 870 visa are not met.

    DECISION

25. The Tribunal affirms the decision not to grant the visa applicant a Sponsored Parent (Temporary) (Class GH) Subclass 870 visa.

    Justin Owen
    Senior Member