Bartola (Migration)

[2024] AATA 1024

Bartola (Migration) [2024] AATA 1024 (22 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Alicia Magan Bartola

VISA APPLICANT:  Mr Jeffrey Magan Bartula

CASE NUMBER:  2300839

HOME AFFAIRS REFERENCE(S):          BCC2023/6530

MEMBER:Mark O'Loughlin

DATE:22 April 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 22 April 2024 at 4:27pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – family commitments in home country – family members in Australia – previous application for a permanent visa – unformed plans for touring in Australia – no ongoing employment – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 16 January 2023 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 3 January 2023. 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 the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 7 March 2024 to give evidence and present arguments.

6. The substantive hearing could not proceed on that day as there was a difficulty with interpretation of the testimony. 

7. The matter was postponed until 27 March 2024. On that day the Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

8. The Tribunal also received oral evidence from Jeffrey Bartula, who is the visa applicant and the review applicant's son, and Joseph Clarke, the visa applicant’s stepfather.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

    Documentary Evidence

11. The Tribunal was provided with a statement prepared by the applicant’s stepfather Mr. Clarke and submitted to the Tribunal by the review applicant.

12. The relevant parts of the statement are that Jeffrey finds irregular work as a taxi driver so is not strictly unemployed.  The statement says this is not unusual in the Philippines.

13. The statement also says Jeffrey has a de-facto wife, several children, a house, a car and a motorcycle all of which are inducements to return to the Philippines.

14. The statement says the delegate’s criticism of the applicant’s request to stay for 12 months is unfair because there was no provision for putting in an explanation in the check box and further that Australia is a big country so 12 months is not a long time.

15. The statement asserts that the review applicant, Alicia and Mr Clarke himself will fund Jeffrey’s stay and that Alicia is in full time work while he gets the age pension and can access a superannuation account if he needs to.

16. The review applicant also sent in a copy of her payslip for the period between 12 and 15 Feb 2024.

17. That suggests that she earns about $480.00 net per week in her part time work as a cleaner and that she works about 64 hours per fortnight and that she had accrued annual leave of 35.182 days.

    Evidence Before the Tribunal

18. The visa applicant, Mr. Barula, told the Tribunal he understood that his application was refused because the delegate did not believe he would leave Australia after his visa ran out.

19. The Tribunal confirmed that Mr. Barula’s mother and sister live in Australia.  His mother visits him in the Philippines every two years and his sister comes every two or three years.

20. The applicant said he wants to come to Australia to visit his mother in Kalgoorlie and his sister in Perth and do some travel in Australia as well.

21. The Tribunal noted the application sought a 12 month stay and asked why he wanted so long.  He said there were 3 options on the application and he chose the longest one for flexibility. 

22. He said he does not have a firm idea of what tourist destinations he would visit if he came but that he would rely on the recommendations of his family.

23. He said his mother and stepfather will cover his expenses while he is here including his travel costs.

24. He said his plans are just to be here as a tourist, whether he is here for 6 or 12 months.  A longer stay would not mean he would do anything different.

25. He said his mother, sister and stepfather would accompany him on his travel in Australia, although his mother and sister would need to keep working so would not be with him for the whole time.

26. The Tribunal asked the applicant if he knows how long his mother can fund his travels for.  He said he would not be travelling the whole time, just going to meet and greet activities for Filipinos through his mother’s contacts.

27. The Tribunal noted that he had sought 6 or 12 months and that even 6 months seems like a long time for that.  The applicant said he only wants 6 or 12 months if that is possible, he is content with 3 months if not.

28. The Tribunal noted that it must consider whether he is really just coming for a visit.  He said he is keen to bond with his family in Australia, meet their friends and do whatever touring they can afford.

29. The Tribunal observed he does not know how much touring they can afford.  He agreed that he does not.

30. The Tribunal observed that, although he has expressed a preference for a visa for 6 or 12 months, it does not appear that he has firm plans if he comes to Australia.  He agreed.

31. The Tribunal asked the visa applicant about his family.  He said he has a defacto partner and they have 4 children.

32. They live in the family home, which his mother owns.

33. He has 2 sisters, one of whom lives in Australia.  His other sister lived in Australia in the past but returned to the Philippines.

34. He lives on money that his mother sends him which is 15,000 pesos per month.  The Tribunal understands that is about AUD$400.00 – 500.00 depending on the exchange rate.

35. The Tribunal asked about the car and motorcycle that are referred to in the submissions.  He said he uses the car to take the children to school and the motorcycle is to get to work when he has a job.

36. He estimated they are worth about 70,000 pesos.

37. The Tribunal asked him about the previous visa application he made.

38. He confirmed he had applied for a permanent visa in 2016.  He said at the time he applied for that visa he had custody of a son from a previous relationship and he also had a child with his current partner.

39. He said he cannot remember whether he applied to come alone or with his partner and the two children.

40. He said he cannot remember why the application in 2016 was refused but though it was probably because he did not have all of his papers.  He said he does not remember much about the application.

41. The Tribunal confirmed that the applicant had sought a permanent visa in 2016 but only a temporary one in 2018.  The applicant agreed.

42. The Tribunal asked what had changed since his application for a permanent visa.  He said his family is bigger since then so he needs to go back for them.

43. He agreed that when he applied for the permanent visa he had custody of the oldest boy and he and his partner had one child and she was pregnant with another.

44. The Tribunal suggested that the situation he was in when he applied for the permanent visa does not seem to be very different to the situation he is in now.  The applicant did not have anything to add to that observation.

45. The visa applicant was asked if there was anything else he wanted to say.  He repeated that he wanted to come to visit his mother and sister.

46. The review applicant, Alicia Bartola, then gave evidence. 

47. She said she believes she understands the delegate’s decision and that the Tribunal has to decide whether Jeffrey will go home if he is allowed to visit Australia. 

48. She said she believes Jeffrey will go back after his visit because of his family in the Philippines.

49. The Tribunal discussed the applicant’s financial situation with her.  A note had been prepared and provided to the Tribunal but was not ultimately lodged.

50. Alicia agreed that the house Jeffrey lives in in the Philippines belongs to her.  She said she thinks it is worth about AUD$20,000.00 although that was only a guess.

51. She said she visits Jeffrey in the Philippines every 2 or 3 years.

52. She said he does not have a formal job but does get work from time to time from the local mayor.

53. She said she sends Jeffrey about 5,000 to 10,000 pesos per month.  The Tribunal advised her that Jeffrey had said she sends 15,000 pesos per month.  She said it varies but that could be correct.

54. The Tribunal asked her if she sends about AUD$400.00 a month.  She said sometimes she does.  She said sometimes it is even more if there are house repairs or other extra bills.

55. She agreed she will need to keep making those payments if Jeffrey comes to Australia.

56. She told the Tribunal she understands that he wants to come for 12 months but if he can only get a visa for 6 or 3 months that would be good too.

57. She said she understands Jeffrey wants to come to Australia to see her and his sister and to see tourist spots in the country.  She said he would see native animals like kangaroos, crocodiles and emus and also cities like Perth and Melbourne.  She said there were no plans for any trips he would make if he came.

58. She also said there were no financial arrangements yet but that they would work out what they could afford when he gets to Australia.

59. The Tribunal asked Alicia if she knew about the visa that Jeffrey had applied for in 2016.

60. She said it was the visa to allow the last remaining member of a family to join them in Australia.

61. She agreed that he had two children and a partner who was pregnant with his third.  She understands that if he had been successful in getting the other visa in 2016 he would have brought his son.

62. The Tribunal then heard from Mr. Joseph Clarke, the review applicant’s husband and the visa applicant’s stepfather.

63. Mr. Clarke said he was familiar with the financial arrangements.  He said the do sometimes make a payment to Jeffrey although he did not think it was as much as $100.00 a month and it is not a regular payment.

64. He said he understands the purpose of Jeffrey’s visit is to visit family and see a bit of the country.  He said they don’t have firm plans but if Jeffrey does come they would probably try to do a road trip to Canberra.

65. He said they are thinking about doing that anyway and could co ordinate it with Jeffrey’s visit if he comes.

66. Mr Clarke said he had made the visa application in 2016 and the purpose of the visa was just for Jeffrey to visit his mother for her birthday in 2018.  He said it was not intended that he would be here permanently.  He said he may have applied for the wrong visa.

    Consideration of Evidence and Findings

67. The evidence about the amount and regularity of the remittance paid to the visa applicant by his mother was inconsistent as to detail but based on the evidence of the visa applicant and the review applicant the Tribunal is satisfied that the visa applicant was usually sent about AUD$400.00 per month to support himself and his family.

68. Further, the Tribunal accepts the evidence of the review applicant that she sometimes sent more if there were extra expenses, particularly related to the upkeep of the house.

69. The Tribunal asked all of the witnesses what the applicant would do if he was allowed to come to Australia.

70. The witnesses all said he would visit family and do some touring but there were differences in the details, suggesting there had not been much discussion about this.  Indeed the visa applicant agreed he had not discussed what he would do with his mother or stepfather.

71. It is not surprising that the plans were not firm given that the applicant’s visa had not been confirmed. 

72. However, the evidence overall was that the applicant would come for 12 months but that either of the shorter periods offered, of 3 months or 6 months, would be suitable.

73. Neither Jeffrey nor Alicia had identified what touring Jeffrey would do in Australia or what tourist sites may be of interest.  Jeffrey said he would be guided by his family, Alicia suggested he would be taken to see native wildlife and go to Perth and Melbourne. 

74. Mr. Clarke said it might be possible to take Jeffrey to Canberra.

75. The Tribunal is not satisfied that there has been any real consideration of what the applicant would do on his trip.  If, as he claims, the applicant hopes to come to Australia for a year, the Tribunal would expect the family to have a better idea of what would happen in that time.

76. Indeed, the Tribunal would expect the parties to have a better idea of what would be contemplated for visits of 3 or 6 months.

77. The Tribunal finds the lack of contemplation of what the visa applicant would do in Australia to count against the application and accords it a little weight.

78. The evidence was that the applicant would not be able to fund the trip himself and would be reliant on his mother and stepfather to meet his costs while he is here.  The Tribunal accepts that evidence and accepts that there would be sufficient funds to do that.

79. The Tribunal is not satisfied that the applicant owns property in the Philippines which would be an inducement to return after his stay.  The Tribunal finds that the house the applicant and his family live in belong to his mother.

80. The Tribunal is satisfied the applicant has a car and a motorcycle in the Philippines with a value of about AUD$2,000.00. 

81. The Tribunal is satisfied the applicant sought a permanent visa to live in Australia in 2016.

82. The evidence of Mr. Clarke was that he had been responsible for making the application and he had understood that he had applied for a temporary visa.  The Tribunal notes that the visa applicant understood that the application had been for a permanent visa and that he hoped to bring his eldest child to Australia once he was here.

83. The Tribunal is not satisfied that there have been significant changes in the size of the applicant’s family since then, as he says, which mean that he no longer wishes to move here permanently.

84. The Tribunal observed that at the time of the 2016 application the visa applicant had two children and his partner was expecting another.  There has been one more child born since then.

85. The Tribunal asked the applicant if he could understand why the Tribunal would think the situation is not very different to when he made the permanent visa application.  He said he did.  He did not expand further.

86. The Tribunal is satisfied that the applicant sought to come to Australia permanently in 2016.

87. The Tribunal is not satisfied the application for a permanent visa to Australia was made by mistake or that the applicant did not intend to move permanently if the application had been successful.

88. The Tribunal finds the applicant is in generally the same personal situation as he was in when he sought that permanent move, particularly as regards the size of his family.

    Legal Framework

89. In the present case, the visa applicant seeks the visa for the purposes of family visit. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

90. 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)).

91. In this matter there is no evidence the visa applicant has not complied substantially with the terms of any visa.  This consideration does not weigh against the application.

92. 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 3 months

93. The visa applicant has given evidence that he wants to come to Australia and he does not suggest he will do anything other than to visit relatives and travel.

94. In particular there is no evidence that he will work or study in Australia.

95. The Tribunal is satisfied the visa applicant will not study in Australia.  He has had the opportunity to pursue studies in the Philippines if he had been interested in doing so and has not.

96. The evidence is that Jeffrey has not had regular employment in the Philippines and has done such work as he can get under the patronage of a local mayor. 

97. He has relied on a remittance from his mother to sustain himself and his family.

98. The visa applicant and the review applicant have not satisfactorily explained what Jeffrey will do in Australia if he is granted the 12 month visa he has sought.  The parties have maintained the application for a 12 month visa despite not being able to satisfactorily explain what he would do for that time.

99. The Tribunal is not satisfied the applicant will comply with condition 8101, that he not work in Australia if he is granted the visa he seeks.  The Tribunal accords that finding some weight.

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

101.   The Tribunal notes that the applicant does not have ongoing employment in the Philippines. He relies on money his mother sends him to support his family in the Philippines. 

102.   The Tribunal finds the applicant’s personal financial circumstances do not suggest an incentive to return to the Philippines and finds that this consideration weighs against the application.

103.   The Tribunal has regard to the fact that although the visa applicant does have a partner and children in the Philippines, which might usually suggest an incentive to return to them, he had applied in 2016 for a permanent visa to Australia which did not include any application for his family.  The Tribunal is not satisfied there has been any substantial change in the applicant’s circumstances since then.

104.   The Tribunal does not accord the presence of Jeffrey’s family in the Philippines significant weight in favour of the application.

105.   The Tribunal is not satisfied the visa applicant owns real property in the Philippines.  The Tribunal is satisfied the applicant owns a car and a motorcycle.  These are easily saleable items. The Tribunal is not satisfied they represent a significant incentive to return to the Philippines.

106.   There is no evidence of other assets in the Philippines.

107.   The Tribunal notes that the visa applicant’s mother and sister live in Australia but another sister and his partner and children live in the Philippines.  The Tribunal does not find that personal ties to Australia weigh against the application.

108.   There is no evidence to suggest the Tribunal should be concerned about the applicant’s character or conduct and these matters do not weigh against the application.

109.   The Tribunal is not satisfied that the proposed duration of the applicant’s stay in Australia are reasonable and consistent with the stated purpose of visiting family or tourism.

110.   The Tribunal has regard to the visa applicant’s previous application for a permanent visa to Australia and finds this consideration is not consistent with him having a genuine intention to stay in Australia temporarily.  The Tribunal accords this consideration some weight against the application.

111.   The Tribunal has considered all of the above matters and the weight accorded the various factors. 

112.   Having done so, 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,and finds that the requirements of cl 600.211 are not met.

DECISION

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

Mark O'Loughlin
Member