Bialek (Migration)

[2020] AATA 1679

Bialek (Migration) [2020] AATA 1679 (18 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rodelyn Fuentes Bialek

VISA APPLICANT:  Mr Randy Perez

CASE NUMBER:  1806752

HOME AFFAIRS REFERENCE(S):          BCC2018/910282

MEMBER:Melissa McAdam

DATE:18 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 18 February 2020 at 11:18am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream– visiting family members– genuine temporary stay criterion – genuine intention to stay temporarily – strong incentives to depart Australia – compliant in the past – family and work commitment in home country –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

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 13 March 2018 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 23 February 2018. 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 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 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 visa applicant provided the following information in his visa application:

   a.He is a 46 year old man from Barangay Salinas II Bacoor Cavite in the Philippines.

   b.He wants to visit Australia between April and October 2018 to see his sister and her family and go to tourist spots.

   c.He has a de facto partner and three children between the ages of 19 and 24.

   d.His brother and parents live in the Philippines. 

   e.His sister, the review applicant, lives in Australia with her husband and daughter.

   f.He has worked in maintenance at Law Offices in the Philippines for over six years.

   g.His sister will support him and his family remaining in the Philippines while he is in Australia.

   h.He previously applied for a 12 month visa in Australia in 2014 and was refused.

5. The review applicant provided the following information in the visa application:

   a.She is the visa applicant’s sister.  She is sponsoring his visit to Australia.

   b.She previously sponsored the visa applicant to visit Australia in 2012.  He arrived on 3 January 2012 and departed on 3 April 2012.

   c.She has worked as a Field Worker at a company in Polkobin for over seven years.

6. The applicants submitted copies of the following documents with the visa application:

   -The visa applicant’s Philippines passport.

   -A written undertaking from the visa applicant that his stay in Australia will be limited to six months and he will then return to the Philippines. He wants to visit his sister and has no other purpose in travelling to Australia.

   -The visa applicant’s Philippines Social Security Number.

   -The review applicant’s Australian passport.

   -A letter of invitation from the review applicant to the visa applicant to visit Australia.

   -A letter of certification from the visa applicant’s employer that he has been employed by their office as maintenance staff since May 2012.

   -The review applicant’s Birth Certificate naming her parents.

   -The visa applicant’s Health Insurance documents.

   -A Barangay certificate certifying the visa applicant lives in the Barangay.

   -The review applicant’s financial accounts’ details.

   -Birth Certificates and related documents for the visa applicant’s children.

7. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the presence of the visa applicant’s children did not sufficiently demonstrate he intends a genuine temporary stay in Australia; his employment was not sufficient to demonstrate he intends to depart Australia within the validity of his visa; and his reason to visit Australia was inconsistent with his request to travel to Australia for six months.

8. On 22 April 2018 the applicants submitted property deeds in the visa applicant’s name to the Tribunal.

9. On 3 February 2020 the applicants submitted the following documents to the Tribunal:

   -Character references for the review applicant and her husband.

   -A certificate from Michael Pecson, Senior Partner, MDPecson Lawyers, dated 27 January 2020, stating that the visa applicant receives a monthly salary of 14,000 pesos.

   -A certificate from Michael Pecson, Senior Partner, MDPecson Lawyers, dated 16 January 2020 stating that the visa applicant has been employed as maintenance staff since 1 May 2012.

   -A letter from the review applicant, dated 2 February 2020, stating that if the visa applicant is approved for a three month visa he will not be working in Australia.  She and her husband will be sending money to his family in the Philippines while he is away.

10. The review applicant appeared before the Tribunal on 17 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

11. The following is a summary of the information provided by the review applicant at the hearing:

    a.Her brother would still like to visit Australia.  If he does they will travel together to sites in Australia. They did this when he visited in 2012. They went to Cairns. They ran out of time to take him to see Melbourne and other places in Victoria.  If he visits Australia again she and her husband will show him Victoria. 

    b.She and her husband work.  Her work is seasonal because it is at a vineyard in Pokolbin.  She will not be working again until June.

    c.In his visa application they asked for the visa applicant to visit Australia for six months, but now they are only seeking three months.  They did not think about what he would do in Australia for 6 months or for 12 months.

    d.The visa applicant’s current employment is as a caretaker at a senior solicitor’s holiday house.  The visa applicant lives there and maintains the place.  He also cooks and cleans for the solicitor when he and his family use the house.  the visa applicant looks after the security dogs and a large expensive fish.

    e.The visa applicant’s partner lives with their children in Cavite.  The house belonged to the review applicant but she has given it to the visa applicant.  His name is now on the title deeds.  The house is about 45 minutes’ drive away from the solicitor’s holiday house.

    f.The visa applicant has been with his partner for 27 years. They have not married.  He tells the review applicant that they are happy as they are.

    g.While the visa applicant is in Australia someone else can be trained to look after the solicitor’s house.

    h.His employer would give the visa applicant his job back when he returns to the Philippines because they have known each since they were children together. The visa applicant was a caretaker for the solicitor’s father and now he is looking after the son’s house.  They trust him very much.

    i.The applicants’ parents and elder and younger brothers are also living in the Philippines, in Mindanao.  The visa applicant visits them from time to time, by plane.  He has a good relationship with them.  Their elder brother is special and has not developed mentally past the age of a child.  The family love him very much.

    j.The applicant’s parents do not want to visit Australia because they are scared of the long plane flight.

    k.The review applicant would like her younger brother to visit Australia in the future. He is married with two children. One of the children is in college.

    l.The review applicant does not have any other family or relatives in Australia, apart from her husband and daughter.

    m.She last visited the Philippines in April last year. She stayed in Mindanao. The visa applicant came to Mindanao then too.

    n.One of the visa applicant’s children is still attending school. The visa applicant pays the school fees. Sometimes the review applicant sends him money to help him.

    o.The visa applicant will return to the Philippines because he loves his job, his boss, his partner and his mother. His partner visits him at the solicitor’s house and helps him with his work.

    p.The visa applicant has no other source of income.

    q.The review applicant wants to spend time with her brother in Australia. She loves him. They are a broken family.

    r.She submitted numerous Western Union receipts for monies sent to the visa applicant in the Philippines.

12. The following is a summary of the information provided by the review applicant’s husband at the hearing:

    a.When the visa applicant visited in 2012 they took him to Cairns, Port Douglas, camping, and football matches.  The visa applicant also spent a lot of time at their home.

    b.It was his fault they asked for 12 months  in the 2014 visa application. At the time the visa applicant was thinking of moving to Australia permanently so the twelve months was for a trial period to see if he liked it here and could be here without his partner and children.

    c.He and his wife regularly transfer money to the visa applicant and his younger brother in the Philippines. They are helping pay the younger’s brother’s child’s college fees. 

    d.He is close to retirement age so soon will not be able to help his in-laws financially in the Philippines. By then their children will be working and can support themselves and their parents.

    e.The last time the visa applicant visited the review applicant’s husband had to provide a $12,000 security bond which was returned to him because the visa applicant departed and did not breach his visa conditions.  He is willing to provide a security bond again.  The review applicant’s husband will ensure the visa applicant complies with his visa conditions as he cannot afford to lose such a large sum of money.   He has car repayments to make and also plans to buy a caravan, which is expensive, for his wife and him to travel around Australia in when he retires.

    f.He will make sure the visa applicant does not work or breach any conditions, and that he departs Australia before his visa expires as the review applicant’s husband cannot afford to lose a bond.

    g.They would be happy for the visa applicant to be given a three month visitor visa.

13. The following is a summary of the information provided by the visa applicant at the hearing:

    a.He wants to come to Australia for three months to tour more and see his sister.

    b.His partner in the Philippines has not travelled outside the Philippines. She cannot accompany him on his visit to Australia because she has to take care of their children and grandchildren.  They live in Cavite.  He lives in Paranaque. They live in separate places because of his work. He is the caretaker of  house his employer owns.  On certain occasions his family come over to visit him.  He sees his partner weekly or monthly.  Her home is about 1.5 hours’ drive away by public transport.

    c.He lives in his employer’s house by himself.

    d.While he is in Australia his boss’ cousin and sister will take care of the house.

    e.The Tribunal but to the visa applicant that the letter from his employer describes him as maintenance staff in the office.  The applicant responded that this is because he does small repair jobs at the office. They call him to come fix things when they need, such as repair a light switch.  The office is on Multinational Avenue in Paranaque.

    f.He does not have many responsibilities in the Philippines.

    g.He would return to be with his family in the Philippines after visiting Australia.  There is no other reason why he would return.

    h.He would not work in Australia because it is unlawful to do so.  He also would not damage the reputation of his brother-in-law and sister. They are a good family.  It would be painful for him to damage them.

    i.He would like to live in Australia if he gets the chance.  He would like to spend his old age with his sister in Australia. They did not have much time together when they were younger.

    j.If he is given a three month visa he will be here for three months. If he is allowed to stay longer he will stay longer.  He will return to the Philippines before his visa expires.

    k.He and his partner are not married.  He supports her because of their children. He gives them all his income.   They have a good relationship, they are okay with respect to their children.

14. The following is a summary of further information provided by the review applicant’s husband at the hearing:

    a.The visa applicant would like to live in Australia because it would be an easier life for him.  He could get a job to work here, and then go home to visit his children. He is a hard worker. 

    b.The visa applicant will not work while he is in Australia on a Visitor visa because the review applicant’s husband would not allow him to.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. In the present case, the visa applicant seeks the visa for the purpose of seeing his sister in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

17. 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)).

18. The visa applicant previously held a Visitor visa in Australia in 2012. The Department’s records confirm he came and left before the expiry of his visa.  The evidence before the Tribunal does not indicate any breach of his visa conditions while he was in Australia. The Tribunal therefore gives this factor significant weight in the applicant’s favour.

19. 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.

20. The Tribunal accepts that the visa applicant will be accommodated and supported by the review applicant and her husband while in Australia. The Tribunal accepts that he will have  access to  sufficient funds to support himself during a short visit to Australia.

21. The visa applicant has low-income employment in the Philippines. His sister in Australia regularly sends him money to supplement his income.  There has also been acknowledgement that employment is easier to obtain in Australia.  Salaries are also generally much higher in Australia than in the Philippines.  The visa applicant is requesting a several month stay in Australia, which would be sufficient time for him to engage in paid work here. For these reasons the Tribunal has some concerns that the visa applicant would work if he visits Australia.

22. However countering these concerns are the fact that the visa applicant previously came to Australia and did not breach his visa conditions on the evidence before the Tribunal; he appears to be appropriately averse to breaking the law in Australia; his brother-in-law appears genuinely adamant that the visa applicant will not be given any opportunity to work in Australia; and with the remittances he receives from the review applicant and her husband the visa applicant does not actually need to work illegally in Australia. On balance therefore the Tribunal is satisfied that he intends to comply with Condition 8101

23. There is no evidence or indication the visa applicant has any interest or need to study in Australia. The Tribunal is therefore satisfied he intends to comply with Condition 8201.

24. Condition 8503 refers to entitlement and is not a condition that involves compliance.

25. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

26. The Tribunal accepts that the visa applicant is from Cavite, outside Manila City, in the Philippines. The Tribunal accepts the visa applicant’s brothers, parents, and children also reside in the Philippines. The Tribunal considers that the presence of these family members represents some incentive for the visa applicant to return to the Philippines after a stay in Australia.

27. In his visa application the visa applicant presented the mother of his children as his de facto partner. However during the hearing he stated that they live apart and see each other only weekly or monthly.  Whenever he referred to his relationship with her he did so only in terms of his responsibilities to his children. He did not present any wish for her to travel to Australia with him.  He also expressed his desire to move to Australia to live in the future to be with his sister. When the Tribunal asked him about leaving his claimed partner and children behind in the Philippines he did not identify any difficulty with this.  He did not list his claimed partner  when asked for details about his family in the Philippines in his visa application. The Tribunal accepts they were in a de facto relationship at some time in the past, that they currently have an amicable and cooperative relationship, and that he provides money to support their children.  However in view of his independence and lack of commitment to her the Tribunal finds it questionable whether he continues to be in a de facto relationship with the mother of his children.  In any event, as presented by the visa applicant, the Tribunal finds that there is little about his relationship with the mother of his children that would motivate him to return to the Philippines.

28. The Tribunal gives substantial weight to the good migration history of the review applicant in Australia. The Tribunal also acknowledges the importance to the review applicant and her husband of maintaining a good reputation with regard to their family and relatives’ immigration compliance in Australia. 

1. The Tribunal notes the review applicant’s wish to sponsor her younger brother to visit Australia in the future.  The Tribunal considers this further motivation for her to ensure the visa applicant does not breach any of his visa conditions and that he departs Australia before the expiry of his visa. 

2. The Tribunal notes the review applicant and her husband’s willingness to lodge a security bond for the visa applicant’s visa to Australia. The Tribunal accepts that the risk of losing a large sum of money is further motivation for the parties to ensure the visa applicant complies with his visa conditions in Australia.

3. In the Tribunal’s view there are few incentives for the visa applicant to return to Philippines. He was unable to identify a motivation to return beyond that his intention was only to visit his sister. He also expressed a wish to one day live in Australia. 

4. In hearing from the applicant the Tribunal formed the impression that he was providing a frank and honest appraisal of his circumstances and the factors which might influence where he would like to be and to live.  He did not try to create reasons for his return beyond being compliant with Australia’s laws and his children’s presence in the Philippines. The review applicant and her husband also impressed the Tribunal with their frank account of the visa applicant’s situation, his wish to one day live in Australia, and their resolve that the visa applicant would not breach his visa conditions or overstay.

5. While there may not be a broad range of extrinsic factors to motivate the applicant to depart Australia to return to the Philippines, the Tribunal is satisfied that his aversion to breaking Australia’s laws, his desire not to cause problems for his sister and her husband, and his wish to see his children would be sufficient motivation for him to comply with his visa conditions and depart Australia before the expiry of his visa.  The Tribunal forms this view on the basis of the applicant’s oral evidence, his previous history of compliance in Australia, and his sister’s and her husband’s seemingly genuine steadfast denials that the visa applicant would, or would be permitted to, breach his visa conditions or overstay.

6. As expressed by the visa applicant and the review applicant’s husband, the visa applicant would try to realise his wish to live and work in Australia after returning to the Philippines, if the opportunity arises.  His acknowledgement that he would like to live here does not of itself indicate he would overstay in Australia on a Visitor visa.  To do so would also likely be counterproductive to his goal.

7. The Tribunal is therefore satisfied that the visa applicant genuinely intends to visit Australia temporarily.

8. For the above reasons the Tribunal is 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 met.

   DECISION

9. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

   ·cl.600.211 of Schedule 2 to the Regulations.

   Melissa McAdam
   Member