Ahofono (Migration)

[2020] AATA 1066

Ahofono (Migration) [2020] AATA 1066 (8 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Mele Ahofono

VISA APPLICANT:  Mr Charlie Monolito Moala

CASE NUMBER:  2000600

HOME AFFAIRS REFERENCE(S):          CLF2020/5303

MEMBER:Moira Brophy

DATE:8 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 08 April 2020 at 8:15am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine intention to stay temporarily – previous refusal of one Australian visa and overstay of another – previous compliant travel to other countries – incentives to remain in Australia or return to home country – Australian citizen wife and children in Australia, mother and employment in home country – father’s recent death, visa applicant’s recent change of employment – review applicant’s offer of security bond – limited savings – consequences of non-compliance – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cll 600.211, 600.612

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 6 November 2019 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 7 October 2019. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist 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 of the adverse migration history of the applicant and a lack of strong ties to home country.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant, Mrs Mele Ahofone gave evidence and presented arguments at a telephone hearing on 6 April 2020. The Tribunal also received oral evidence from the applicant Mr Charlie Monolito Moala.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

8. The visa applicant is a 29-year-old national of Tonga. He is married to an Australian citizen and they have three children. The visa applicant has previously been to Australia twice. The visa applicant’s last Special Program Visa for Seasonal workers (TE416) ceased on 12 November 2014 and he remained in Australia until 10 January 2017. The visa applicant has previously applied for a tourist visa to Australia on 6 December 2011 and this visa was refused on 20 January 2012. In his present application for a Tourist visa, he requested a visa for up to 3 months for a family visit and to attend the delivery of his third child with the review applicant. The visa applicant stated he intends to enter Australia on more than one occasion with the reason given being ‘family affairs’. The visa applicant is employed and his travel will be self-funded and he will also have the support of review applicant.

9. The review applicant, Mrs Mele Ahofono, is the wife of the visa applicant. She is an Australian citizen by birth.

10. In support of this application the following documents were provided to the Department :

    ·Department of Home Affairs form 1419

    ·Department of Home Affairs form 54

    ·Copy of visa applicant’s passport

    ·Copy of visa applicant’s marriage certificate

    ·Copy of review applicant’s passport

    ·Copy of review applicant’s birth certificate

    ·Copy of Filimone Finau Hula Moala’s birth certificate

    ·Copy of Filimone Finau Hula Moala’s passport

    ·Copy of visa applicant’s Bank of South Pacific Tonga account statement

    ·Copy of visa applicant’s letter of employment

    ·Medical reports of review applicant

    ·Support letter by review applicant

    ·Copy of Setaleki Ahfono’s passport

    ·Support letter by Setaleki Ahfono

11. In support of this application the following documents were provided to the Tribunal :

    ·Copy of Department decision record

    ·Medical reports of Tutuila Moala

    ·Copy of birth certificate of Tutuila Moala

    ·Copy of birth certificate of Ofa Ki Vahanoa Moala

    ·Copy of Filimone Finau Hula Moala’s birth certificate

    ·Copy of visa applicant’s marriage certificate

    ·Cover letter requesting priority to the review application

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. In the present case, the visa applicant seeks the visa for the purposes of visiting his wife and three children. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

14. 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)).

15. The review applicant told the Tribunal the visa applicant had previously travelled to United States and to New Zealand. She was not t able to recall when he had visited those countries as she said it was a long time ago. She said he had not been refused a visa by any country and that he had always complied with the terms of his visa. When specifically asked if he had visited Australia she said he had and that he had overstayed his visa. He had been detained when he was out driving with her and their son and he spent time in Villawood Detention Centre before he went back to Tonga. When asked whether they had at any time applied for a Partner visa she said they had intended to but were unable to because of the application costs.

16. The visa applicant told the Tribunal he had previously travelled to the United States when he was a child and he had been to New Zealand and Australia on two previous occasions. When asked about previous travel to Australia he said he had been in Australia in the period from 2014 to 2017. The only country to ever refuse him a visa was Australia.

17. On his application the visa applicant stated he wanted to visit Australia for a period of up to three months. His planned arrival was 5 November 2019 and his planned departure was 3 December 2019. At the time of hearing the review applicant said he would come for up to three months and the visa applicant said he would come for one month only.

18. 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.

19. The Tribunal discussed with the visa applicant how he would arrange his employment during his proposed absence. He told the Tribunal he would be able to get one month holidays. Given his evidence he had changed his employment from the construction sector to the security sector only three weeks ago the Tribunal considered this may be unpaid leave. The Tribunal is concerned that while the visa applicant is employed and earning an income in Tonga his position would not be an incentive to return. In the current climate it is difficult to see that an employment history of some three weeks in a new sector would be an indicator of reliable and ongoing employment. Severance of this tie could occur with a minimum of difficulty and his professional skill set would be portable. The Tribunal was also mindful of the evidence given by the review applicant that she had discussed with the visa applicant the fact that he would not be able to work in Australia unless he was granted work rights. Her evidence was that the visa applicant wanted to work in Australia but she had stressed to him that for the present he was not able to and that this visit was about his family. She said she had told the visa applicant that if he wants to work he will need to apply for a working visa.

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

21. In assessing intention the Tribunal was mindful of the evidence given by the review applicant when asked if she would be prepared to post a security bond and if so for what amount. She was not hesitant in answering she would be prepared to post a bond of $3,000. The Tribunal noted her earlier evidence as to the paucity of her savings. The Tribunal has taken this into account.

22. The Tribunal was mindful of the evidence given by the review applicant as to her circumstances. She resides with her mother and her brother in a three bedroom house provided by social housing. Her share of the rent is $230 per week. She is not in paid employment. She has three children with the visa applicant aged three, two and five months. She receives single parenting payment and family tax benefits. Her income is $1300 per fortnight. She has yet to receive an increase in that amount on account of Centrelink not having completed her claim since she had her third child.

23. The visa applicant gave evidence he lives with his mother in a home provided to his mother by her employer. He said he had lived in the home for some three years. He changed his employment about three weeks ago from the construction industry to the security sector. When asked whether he would be entitled to leave he indicated he would be able to take a month off work. The applicant said his mother and his work would be his incentive to return at the end of his stay in Australia. The Tribunal put to him that they had not been a sufficient incentive in 2014 to 2017 when he had stayed in Australia for over two years without a substantive visa and that it was difficult to see why his mother and his work would be a stronger incentive now especially given his wife and three young children are in Australia. The visa applicant said this was now about his mother since his father had recently passed away. He did not want to leave her on her own. It was a different situation now.

24. The Tribunal also discussed with the review applicant its concerns that the visa applicant would not return to Tonga at the end of his stay if the visa was granted. The Tribunal put to the review applicant that the visa applicant had previously entered Australia on a temporary visa and had overstayed his visa. The review applicant said the situation was now different as his father had passed away and he did not want to leave his mother on his own. The visa applicant has not seen his daughter who was born last November. The cost of the review applicant and the three children travelling to Tonga was prohibitive so allowing him to come to Australia was the only way he could meet his daughter.

25. The Tribunal discussed with the review applicant the concerns of the Tribunal that this was really an application to obtain a migration outcome that allowed her and her partner to be together in Australia with their children. The review applicant stated the visa applicant would return home because of his mother and because she recognised that if he did not comply with his visa obligations now it would be very difficult for them to apply for a permanent visa when they had saved the money for the application fee.

26. The Tribunal has carefully considered the decision and has taken into account the applicant’s personal profile, the circumstances of his family, the obvious bond he has with the review applicant and the fact he has not seen his newborn daughter, but the Tribunal has also taken into account the previous adverse migration history and the strong ties the applicant has to his immediate family in Australia. Given the matters discussed above the Tribunal has difficulty accepting that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

27. For the above reasons, both singularly and cumulatively, the Tribunal is not satisfied that the 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.

    Moira Brophy
    Member