Aron (Migration)

[2022] AATA 2958

Aron (Migration) [2022] AATA 2958 (20 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rhodora Grace Fronda Aron

VISA APPLICANT:  Mrs Julieta Balbastro Fronda

CASE NUMBER:  2201289

HOME AFFAIRS REFERENCE(S):          BCC2021/2173414

MEMBER:David Crawshay

DATE:20 July 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 20 July 2022 at 4:31pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – no work condition on previous visa – lengthy period of unlawful residence – lengthy unlawful employment period – managing property portfolio while in Australia – assistance with childcare – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611; Schedule 8, Condition 8101

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 13 December 2021 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 14 November 2021. 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 (Cth) (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 intended to stay temporarily in Australia for the purpose for which the visa was granted. A copy of the delegate’s decision was provided to the Tribunal by the review applicant.

5. The review applicant appeared before the Tribunal on 12 July 2022 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 has stated that she seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)).

10. The visa applicant’s last substantive visa was a Tourist visa (TR-676) and Department records show that it had condition 8503 (“no further stay”) imposed on it, meaning that the visa applicant was not entitled to the grant of a further substantive visa. The Tribunal is aware that condition 8101 (“no work”) is placed on Tourist visas unless an exemption applies. However, it does not have enough evidence to be able to be sure that this condition was in fact imposed. Having said that, the issue of the visa applicant’s work during her period of being an unlawful non-citizen is discussed below.

11. Although the visa applicant overstayed her visa by almost 12 years, there is no evidence to show that she applied for a further visa such as a bridging visa. As such, without more evidence, the Tribunal is not satisfied that the visa applicant did not comply with the conditions of her last substantive visa, and she has not been granted any bridging visa. This factor is given some weight.

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.600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than three months.

13. According to a submissions letter from the review applicant dated 1 February 2022, the visa applicant overstayed her last visa by nearly 12 years, having only returned to the Philippines in 2017 despite her previous visa having expired in 2005, and movement records substantiate this period of overstaying. The letter stated that the visa applicant left her children in the Philippines at that time to work in Australia.

14. The letter also stated that the visa applicant was “not planning on working anymore. She does not have any more financial obligations in the Philippines because we, her children, provide everything for her now.” At hearing, the review applicant told the Tribunal that the visa applicant was currently working casually as a pharmacist.

15. The Tribunal has considered the evidence in front of it when assessing whether the visa applicant intends to comply with condition 8101 relating to no work. It accepts that the visa applicant worked in Australia for some or all of the period from the time that her Tourist visa expired in December 2005 until she left in June 2017 – a significant period of time. This was despite being an unlawful non-citizen during that time and barred from working in Australia. It accepts that she is currently a pharmacist in the Philippines, but that she works casual hours.

16. The Tribunal acknowledges the visa applicant’s past history of illegal work in Australia and that this may demonstrate a propensity by her to engage in work when she is in Australia on prospective visitor visas. Additionally, it accepts that her job in the Philippines does not provide a great incentive for her to return there given her casual status nor her pension (of which more is below). However, the Tribunal also accepts that the visa applicant is supported by money she receives from family members. In light of this evidence, it accepts that she is a low risk of working during the period of any visitor visa granted to her as she will likely be provided for by the review applicant. This factor is given some weight.

17. Based on the visa applicant’s profile, the Tribunal is satisfied that she intends to comply with condition 8201 relating to no study or training for more than three months. This aspect is given some weight.

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

19. The Tribunal has considered the evidence in relation to the visa applicant’s employment. As above, it accepts that she has been working casually as a pharmacist in the Philippines. It accepts that she has little need to work there as she is financially supported by her children, including by the review applicant in Australia. This is also evidenced by the fact that she has applied for a 12-month visa, and only intends to return to the Philippines every three months during that period to “maintain her qualification” according to the review applicant’s testimony at hearing.

20. The Tribunal has considered the evidence but is not satisfied that the visa applicant’s employment provides an incentive for her to return to the Philippines within the validity of any visitor visa period imposed. This aspect is given very little weight.

21. In relation to the visa applicant’s assets, the Tribunal heard from the review applicant that the visa applicant has a condominium and other pieces of land in the Philippines. Upon further questioning of the review applicant at hearing, it was discovered that another family member – a daughter of the visa applicant – had moved into the condominium in 2014. The review applicant also told it that she thought that the pieces of land were purchased in 2015 or 2016.

22. The Tribunal notes that these events all occurred while the visa applicant was in Australia. It therefore finds that the visa applicant was able to deal with her property portfolio during the period when she was living as an unlawful non-citizen in Australia, and there is no reason to suggest that she would not be able to do the same if she were to again stay here for an extended amount of time. This evidence of ownership is given very little weight as an incentive for the visa applicant to return to the Philippines.

23. The review applicant told the Tribunal that the visa applicant had been receiving a pension for a “very small amount” upon the death of her husband. She said that it was sent through a bank account that could not be accessed while in Australia. While the Tribunal accepts for present purposes that this may be true, it accords little weight to this evidence as the amount is described as “very small” and the visa applicant had previously not been able to access it during the period when she was last in Australia from 2005 until 2017.

24. The Tribunal has considered the visa applicant’s previous migration history. It has specifically considered that she overstayed her previous Tourist visa (TR-676) by almost 12 years. It has also considered that, during this time of being an unlawful non-citizen, she worked in contravention of Australia’s laws.

25. On the other hand, the Tribunal has considered the reasons given by the parties for the visa applicant overstaying her visa; namely, that she was living and working in Australia in order to finance her children’s education and returned immediately after their schooling was completed. While the Tribunal may accept that the visa applicant had a specific and, in her mind, justifiable reason for her contraventions, it nonetheless considers she has displayed a high degree of contempt for Australia’s migration and general laws and a general willingness to not be bound by them. It has concerns that she will act in a similar fashion if she considers herself justified in doing so. It accords this aspect substantial adverse weight.

26. The Tribunal has considered the composition and location of the visa applicant’s family. In this regard, it accepts based on the consistent testimony of the parties that the visa applicant has:

    ·a daughter – the review applicant – living in Australia with that daughter’s husband and a six-year-old and one-year-old child;

    ·a son who also lives in Australia;

    ·a daughter who lives in the Philippines; and

    ·a daughter who lives in the Philippines but who is currently in Australia on a visitor visa.

27. The Tribunal heard from the visa applicant that her daughter who was currently in Australia on a visitor visa had passed the pharmacy exam here. When asked whether this meant that this daughter wished to come to Australia permanently, the visa applicant said maybe. The visa applicant said that she had brothers and sisters in the Philippines and nieces to look after her.

28. The Tribunal has considered the evidence in front of it, including the above evidence. It accepts that the visa applicant has some family in the Philippines, mainly consisting of two daughters but also extended family. It accepts for present purposes the review applicant’s testimony that at least one daughter – the daughter who was currently in Australia on a visitor visa – has children, and that the visa applicant therefore has grandchildren. It has balanced this evidence against evidence that the visa applicant has a son and daughter (the review applicant) living in Australia. Having balanced this evidence, it gives little weight to the presence of some family in the Philippines as an inducement for the visa applicant to return there as there is other family in Australia that may serve as an incentive for her to stay here.

29. The Tribunal has lastly considered the purported reason for the visa applicant travelling to Australia. The visa applicant wrote on her application form that she intended to spend Christmas with family in Australia. Elsewhere on that form, she listed her planned arrival date as 19 December 2021 and her planned final departure date as 18 December 2022. However, at hearing the review applicant told the Tribunal that the visa applicant was going to come to Australia to help the review applicant look after her young child so that she can work without restrictions. She elaborated that she currently works 24 hours-a-fortnight but would be able to work a few more shifts if the visa applicant were here for a few weeks or months. She said that this would allow her to be more financially stable. The visa applicant spoke to substantially the same details, stating that she wants to assist the review applicant with her children so that she can go back to work.

30. The Tribunal has considered the above evidence. It has considered that the parties have both stated a desire for the visa applicant to come to Australia to help care for at least one of the review applicant’s children so that the review applicant can return to work. It has considered that the child in question is one year old and there was no suggestion at hearing that the review applicant was looking at alternative modes of childcare. The Tribunal finds that this aspect may prove to be an inducement for the visa applicant to stay longer than the stated period of time – which is one year. It has concerns that the visa applicant may be using the visitor visa, which is a temporary visa, as a means of maintaining de-facto residency in Australia in order to stay and help the review applicant indefinitely when there are other visas for this purpose. This aspect is given decisive weight of an adverse nature.

31. 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. While the visa applicant has some family residing in the Philippines, she has a daughter in Australia (the review applicant) who has clearly stated a need for assistance with childcare in order to work more. This aspect, coupled with concerns about the visa applicant’s past willingness to flout Australia’s migration laws, lead it to doubt whether she has the requisite intention.

32. The Tribunal finds that the requirements of cl.600.211 are not met.

    DECISION

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

    David Crawshay
    Member