Byrne (Migration)

[2024] AATA 3922

Byrne (Migration) [2024] AATA 3922 (9 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Marilyn Byrne

VISA APPLICANTS:  

Name	Date of Birth	Department Reference
Mr Joel Cadano	01 July 1977	BCC2023/2455276
Ms Neydie Cadano	17 March 1976	BCC2023/2457317

REPRESENTATIVE:  Mr Charlie Bulos

CASE NUMBER:  2307663

MEMBER:Member Nathan Goetz

DATE:9 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision dated 30 April 2023 refusing to grant Mr Joel Cadano a Visitor (Class FA) visa and remits the visa application back to the delegate for reconsideration, with a direction that visa applicant satisfies the following criteria for the grant of the visa:

· cl 600.211 of Schedule 2 to the Regulations.

The Tribunal has no jurisdiction to review the decision dated 30 April 2023 refusing to grant Ms Neydie Cadano a Visitor (Class FA) visa.

Statement made on 09 August 2024 at 10:14am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s positive migration history – previous compliant visits – evidence of financial support – business and family responsibilities in home country – recusal request – decision under review remitted         

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 19
Migration Act 1958, ss 65, 338, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.611

CASES

Hasran v MIAC [2010] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337           

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for merits review of decisions made s 65 of the Migration Act 1958 (Cth) (the Migration Act) by a delegate of the Minister who refused to grant each visa applicant a Visitor (Class FA) visa.

   VISA APPLICATIONS AND CRITERIA FOR THE GRANT OF THE VISAS

2. On 22 April 2023 the visa applicants were outside Australia and applied for the visas. They each lodged separate visa application forms. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The visa applicants applied for the visas in the tourist stream.

3. On 30 April 2023 the delegate refused to grant each visa applicant the visa because the delegate was not satisfied that each visa applicant satisfied cl 600.211 of Schedule 2 to the Regulations. This clause provides the following:

   600.211 

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  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; and

   (b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c)  any other relevant matter.

4. The delegate decision record does not identify the conditions to which the Subclass 600 visa would be subject. Clause 600.6 provides for the imposition of conditions on visitor visas. Where a visa is granted in the tourist stream, cl 600.611 applies. As there is no evidence that the Minister has required the visa applicants to be sponsorship in the tourist stream, and the visa applicants have not entered Australia, cl 600.611(3) applies, which means that the following conditions are applicable:

   Condition 8101:          This condition is a mandatory condition. The holder must not engage in work in Australia.

   Condition 8201:          This condition is a mandatory condition. While in Australia, the holder must not engage, for more than 3 months, in any studies or training.

   Condition 8501:          This condition is a discretionary condition. The holder must maintain adequate arrangements for health insurance while the holder is in Australia.

   Condition 8503:          This condition is a discretionary condition. The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

   Condition 8558:          This condition is a discretionary condition. The holder must not stay in Australia for more than 12 months in any period of 18 months.

5. The letter notifying each visa applicant that their respective visa applications were refused advise the visa applicants of their ‘review rights.’

6. The letter to the visa applicant Mr Joel Cadano advised him that the Department cannot consider the visa application any further. However, if he had a parent, spouse or de facto partner, child, brother or sister who is an Australian citizen or Australian permanent resident, that person is entitled to apply for merits review of the decision to the Administrative Appeals Tribunal (AAT).

7. The letter to the visa applicant Ms Neydie Cadano advised there was no right of merits review for the decision.

   REVIEW APPLICATION AND APPLICATION FOR THE MEMBER TO RECUSE HIMSELF FROM CONDUCTING THE REVIEW

8. On 1 June 2023 an application for merits review was lodged by the review applicant with the Tribunal. A single review application form was lodged seeking review of the decisions made to refuse each visa applicant a visitor visa. The review application form advised that a representative was appointed to act in the review, being Mr Charlie Bulos, an Australian lawyer.

9. On 3 July 2024 the review was constituted to the Tribunal Member.

10. On 5 July 2024 the Tribunal wrote to the review applicant for two purposes.

11. The first reason was to invite comment on the validity of the review application made by Ms Neydie Cadano. The letter detailed that this visa applicant applied for the visa and nominated the review applicant as her sister-in-law. This sister-in-law applied to the Tribunal to review the decision. The letter noted that the decision record indicated that there was no right of merits review and contrasted that with the decision record relating to Mr Joel Cadano, which provided the people who could seek review of that decision. This was in accordance with s 338(7) of the Act which provides the following:

    338(7)

    A decision to refuse to grant a non - citizen a visa is a Part   5 - reviewable decision if:

    (a)  the visa is a visa that could not be granted while the non - citizen is in the migration zone; and

    (b)  a criterion for the grant of the visa is that the non - citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse,   de   facto   partner, child, brother or sister of the non - citizen; and

    (c)  particulars of the relative concerned are included in the application.

12. The letter invited the review applicant to comment on the validity of the review application concerning Ms Neydie Cadano in writing by 12 July 2024 and noted that if it was conceded that the Tribunal did not have jurisdiction to review the decision concerning Ms Neydie Cadano, the review applicant may wish to consider withdrawing the review application in respect of that visa applicant. The letter included a hyperlink to an online form for this purpose.

13. The second reason was to invite the review applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 8 August 2024 commencing at 10:00am and to occur via MS Teams. Included with the hearing invitation was a ‘response to hearing invitation’ that the review applicant was directed to complete and return to the Tribunal within 7 days. In that form, the Tribunal indicated that it wished to speak to Mr Joel Cadano at the Tribunal hearing.

14. On 7 July 2024 the Tribunal received withdrawal notice from the representative specifying that the review for Ms Neydie Cadano was being withdrawn by the review applicant.

15. On 8 July 2024 the Tribunal received a withdrawal notice from the representative but the form did not specify whether the review was being withdrawn for Ms Neydie Cadano or Mr Joel Cadano or both of them.

16. On 8 July 2024 the representative telephoned the Tribunal to confirm that the review applicant submitted the 8 July 2024 withdrawal form herself and that the representative submitted the 7 July 2024 withdrawal form. The representative told Tribunal staff that the review was only withdrawn in respect of Ms Neydie Cadano.

17. On 12 July 2024 the Tribunal received a completed ‘response to hearing invitation’ which indicated that the review applicant and the visa applicant Mr Joel Cadano would appear at the Tribunal hearing. In that form, a request was made to the Tribunal to take oral evidence from Maria Theresa Uba who was identified as a sibling of Mr Joel Cadano. This witness’s evidence was identified as ‘will give evidence of the proposed itinerary in Queensland which they have not been with their first visit.’

18. On 15 July 2024 the representative wrote to the President of the Tribunal and requested that the Tribunal Member be recused from conducting the review. This was sent to the President at [email protected]

19. The request letter detailed that the representative had made a previous complaint against the Tribunal Member in another review, which he did not believe was satisfactorily resolved and he was concerned that the ‘compliant of perceived bias will continue to affect our new client in this regard.’ In that case, the Tribunal Member affirmed a decision of a delegate to refuse to grant the representative’s client a bridging visa.

20. The representative detailed in the request letter that in the previous review, due to ‘difficulty with out divergent views on the issues of natural justice and particular legislation…I requested for at least one (1) day or the next day to submit further submissions to clarify our position on those issue/s brought by the Presiding Member before making the decision.’

21. The request letter detailed that the extension of time was not granted, and the Tribunal Member indicated that he would make a decision by 4:30pm the day of the hearing, but this did not occur and the Tribunal made a decision on that review the following day.

22. The representative noted that prior to the Tribunal Member making a decision, the representative wrote to the President of the Tribunal with a ‘notice to inhibit and to vacate the decision if the Member ever made the decision citing perceived bias.’ The request letter detailed that the Tribunal Member ‘seized and held the correspondence’ addressed to the President of the Tribunal. It was submitted that this was ‘unethical conduct’ and the representative questioned under ‘what authority does the Tribunal Member have to seize and hold the correspondence not addressed to him.’ The request letter attached a copy of the President’s letter to the representative in 2024 in response to the representative’s complaint letter in 2024 where the President noted that the request for the Tribunal Member be inhibited from making a decision was not referred to the President.

23. The request letter alleged that the Tribunal Member had breached the Conduct Guide for AAT Members and that it was ‘crystal clear that the Tribunal Member was not impartial, and his action is clearly biased.’ It was submitted that the Tribunal Member had not allowed the President of the Tribunal to make his own decision concerning the recusal application. The letter noted the letter from the Deputy President and Migration and Refugee Division Head dismissing the complaint detailing that the decision of the Tribunal affirming the decision under review could not be vacated but claimed that ‘this did not rule on the issue of recusal prior to the decision made.’ The request letter attached a copy of the Deputy President’s letter dismissing the complaint.

24. It was submitted that if the Tribunal Member ‘has a history of showing his clear bias in not extending the hearing for one day but allowing himself this extension the case instead is clearly unfair.’ The letter also acknowledged that the Tribunal Member’s previous decision refusing to grant the bridging visa was not the subject of judicial review to the Federal Circuit and Family Court and this was attributed to financial hardship. The representative claimed that he had secured successful outcomes without hearings at the Tribunal between 24 and 31 July 2023 as a representative which showed his ‘credibility in pursuing cases.’

25. In view of all of that, the representative requested that the Tribunal Member be recused from conducting the review because the Tribunal Member had a history of being unfair and partial to the complainant lawyer in violation of the Conduct Guide which can ‘likely affect the review applicant in the present review as the Tribunal Member did in the (previous review).’

26. On 16 July 2024 the President of the Tribunal wrote to the representative and advised that the previous complaint was considered in accordance with the Tribunal’s complaint handling processes and resulted in the Deputy President and Migration and Refugee Division Head not being satisfied that the Tribunal Member had breached the Conduct Guide. The President’s letter noted that the representative did not complain to the Ombudsman in respect of that finding by the Deputy President, and that no application for judicial review of the Tribunal’s decision to affirm the decision refusing to grant the bridging visa was made. The letter detailed that, in those circumstances, the President considered the complaint against the Tribunal Member closed.

27. The President’s letter noted that the representative did not refer to any conduct of the Tribunal Member in relation to the present review which would suggest that it was appropriate for the President to exercise powers under s 19D(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Tribunal Act) to reconstitute the review to another Tribunal Member. The President indicated that the appropriate course for the representative to adopt was to make an application for recusal to the Tribunal Member and the application explain why the test of apprehended bias in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] is satisfied.

28. On 17 July 2024 the representative wrote to the Tribunal Member ‘for reasons of apprehended bias, we are seeking your indulgence to please inhibit yourself to hear this case.’ The Member recusal letter noted the Tribunal Member affirmed a decision to refuse to grant a bridging visa to another client of the representative ‘despite our request for the President to inhibit yourself for perceived bias, but you prevailed and decided it yourself without referring the matter to the President as the correspondence relates to him and not you.’

29. The representative also cited the Tribunal’s failure to agree to the representative’s request to delay making a decision on the review for one day after the Tribunal hearing but not deciding the review the day of the Tribunal hearing and instead making a decision the following day as ‘depriving me the time I asked for.’ He also noted ‘Nonetheless the case was resolved to your favour as the applicant did not have financial capacity to spend for any review of decision.’

30. The Member recusal letter claimed that ‘we will pursue this matter on the ground of apprehended bias if not acted as requested below.’ The below request was that the Tribunal Member excuse himself from conducting the review as a ‘matter of courtesy.’ The representative claimed that the reason for the applicant was ‘reflected in what happened in (the other review) where I did not see your fairness and impartiality despite my proper notice in which the test of apprehended is applied and satisfied in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] at par. 60.

31. On 17 July 2024 Tribunal staff wrote to the representative on instruction from the Tribunal Member acknowledging receipt of his letter of 17 July 2024 making application for the Tribunal Member to recuse himself from conducting the review.

32. In that letter, the Tribunal Member indicated that he would consider the application and make a decision on that application at the Tribunal hearing on 8 August 2024. The representative was advised that if the Tribunal Member acceded to that request at the Tribunal hearing, the review would be postponed to another date and be constituted to another Tribunal Member. The letter also indicated that in the event that the Tribunal Member did not agree to recuse himself, the Tribunal hearing would proceed as planned on 8 August 2024 and the substantive issue would be considered. This was designed to ensure that the representative and two applicants would be ready to discuss the fact in issue on 8 August 2024 in the event that the Tribunal Member did not agree to the disqualification application.

33. Later that day, the representative acknowledged the correspondence from the Tribunal and advised that he would revert to the Tribunal after obtaining instructions from the review applicant.

34. On 18 July 2024 the representative wrote to the Tribunal and advised that that the decision of the Tribunal Member was ‘totally unfair’ and indicated that the representative ‘decided to refuse Member Goetz’s decision and refer this matter to AAT President for his action.’ The representative wrote to the President of the Tribunal that same day, submitting that the Tribunal Member’s proposed course of action was unfair and not impartial and foreshadowed unfairness.

35. Later that day, the President responded to the representative advising that the course proposed by the Tribunal Member was orthodox and there was no right of appeal to the President from Tribunal Member’s decisions about recusal applications, noting that the proper venue for review of such a decision were the Courts. The letter advised that the President did not propose to engage further with the representative about the issue.

36. On the morning of 8 August 2024, the representative wrote to the Tribunal and advised that the review applicant had been taken into hospital and would be unable to appear at the Tribunal hearing scheduled later that day. The representative advised that he had been unable to obtain instructions from the review applicant and that the representative was ‘leaving the decision to the Tribunal Member about what to do’ and that the representative would ‘abide by the instruction.’

37. Despite this, at the start of the allocated hearing time, the review applicant appeared at the Tribunal hearing by telephone. The Tribunal advised that she was presently at the hospital. The Tribunal inquired whether the review applicant wished to proceed or wanted to have the matter postponed in light of the fact that she was in hospital. The matter was stood down to allow the representative and the review applicant to discuss what the review applicant wanted to do. When the matte resumed, the Tribunal was told that the Tribunal hearing could proceed. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages with the review applicant appearing by telephone and the visa applicant, representative, and interpreter appearing by video.

38. The Tribunal then asked the representative whether the application for recusal was still pressed. The Tribunal was told it was. The Tribunal asked whether the representative wanted to make any further submission in support of the application or whether the recusal application should be decided on the material that had been lodged. The representative did not seek to put any further argument forward at the Tribunal hearing.

39. The Tribunal then determined the recusal application and refused to accede to the request, indicating that the reasons would be provided in the decision record. The substantive issue was then considered. The reasons for the Tribunal refusing to accede to the application for recusal are as follows:

40. The assertion in the submission from the representative that the test in Ebner was satisfied was not accompanied by any argument taking the Tribunal Member through the test, identifying the conduct complained of, and applying that to the test and demonstrating that it is satisfied. The recusal application essentially complained of two things and then suggested Ebner was satisfied.

1. The Tribunal was not satisfied that there is actually bias nor that there is a reasonable apprehension of bias by the Tribunal towards the representative or the representative’s previous client or present client.

2. The bias complaint appears to be directed to the fact that the Tribunal did not accede to a postponement request/request to delay making a decision so that client could consider her position. The Tribunal refused to do so and provided reasons in its decision for undertaking that course. No judicial review was lodged with the Federal Circuit and Family Court over the Tribunal exercising its discretion to refuse a postponement or delay making a decision. While the Tribunal acknowledges that it did not deliver its decision on the afternoon following the Tribunal hearing as it had indicated it would do, the submission from the representative overlooks that prior to the time the Tribunal indicated it would make a decision, the representative wrote to the Tribunal requesting that the Tribunal Member be inhibited from making a decision.

3. The delay was a result of the representative making that request, and it requiring proper consideration, which is why the decision was not delivered at the time the Tribunal had earlier indicated it would do so. The Tribunal is not satisfied that the timing of the delivery of the decision on review demonstrates actual or apprehended bias.

4. The bias complaint also appears to be directed at the fact that the Tribunal Member treated the request for ‘inhibition’ made in the course of the review for the representative’s other client as an application for recusal and dealt with by the Tribunal Member himself. It was suggested that by doing do, the Tribunal Member had acted with bias. It was suggested that the request by the representative was kept from the President by the Tribunal Member. The Tribunal is not satisfied that this was the case.

5. As outlined in Australasian Institute of Judicial Administration Guide to Judicial Conduct (3^rd edition, 2023) and its earlier edition, applications for disqualification are to be made to the person who is alleged to be bias. As outlined by the Deputy President in response to the complaint about the Tribunal Member deciding the matter for himself, the request was put before the Tribunal Member by Tribunal staff and the Tribunal Member was not alerted to the fact that the request was directed to the President. As the Tribunal Member understands it, the usual course for any correspondence directed to the President about the conduct of Members is not usually brought to the attention of the Member until the review is concluded.

6. On the basis that the usual practice is for requests for recusal to be directed to the presiding Tribunal Member and the fact that the request was put before the Tribunal Member by Tribunal staff, the Tribunal Member understood the request in a manner that was consistent with the Guide to Judicial Conduct. The allegation that the Tribunal Member withheld the ‘inhibition’ request from the President is without foundation. The Tribunal Member overlooked the fact that the request was directed to the President, rather than the Tribunal Member himself.

7. As the application for recusal on the basis of bias was not made out, the Tribunal refused to accede to the request.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. There are two issues to consider in this review.

9. The first issue in this review is whether Mr Joel Cadano satisfies cl 600.211 of Schedule 2 to the Regulations.

10. If the Tribunal finds that Mr Joel Cadano satisfies cl 600.211 of Schedule 2 to the Regulations, the correct or preferable decision is to set aside the decision refusing to grant the visa, and remit the visa application back to the delegate for reconsideration, with a direction that he satisfies cl 600.211 of Schedule 2 to the Regulations.

11. If the Tribunal finds that Mr Joel Cadano does not satisfy cl 600.211 of Schedule 2 to the Regulations, the correct or preferable decision is to affirm the decision refusing to grant the visa.

12. The second issue in this review is whether the Tribunal has jurisdiction to review the decision made in respect of Ms Neydie Cadano.

13. The Tribunal considered all the material provided in the course of the visa application and the review application, including the oral evidence provided at the Tribunal hearing.

14. According to the visa application form, Mr Joel Cadano is a male citizen of the Philippines who was born on 1 July 1977 in Sogod, Southern Leyte, Philippines and presently located in that country. At the Tribunal hearing, Mr Joel Cadano confirmed he remains in that country and that he had not travelled out of that country between the period of the visa application being lodged on 22 April 2023 and the Tribunal hearing occurring on 8 August 2024. There is no evidence to undermine that assertion. He told the Tribunal that he continued to live at the residential address detailed in the visa application form.

15. Mr Joel Cadano detailed in the visa application that the visa application was lodged as part of a group of applications, with the other visa application being made by his wife Ms Neydie Cadano. He identified in the form that he was married. Included with the visa application was his marriage certificate. At the Tribunal hearing, Mr Joel Cadano confirmed that he remained married and living with his wife in a ‘marriage like’ relationship, meaning that the couple were not living apart/separated. The Tribunal thought it prudent to clarify their living situation given that it is not presently possible for marriages that occur in the Philippines to be subject of divorce (ABC News online: There is no evidence to undermine the assertion that the couple remain together. He told the Tribunal the couple have no children.

16. In the visa application form, Mr Joel Cadano declared that he wished to be in Australia between 1 June 2023 and 26 August 2024. He identified in the form that the purpose the visit was tourism and to see family. At the Tribunal hearing, noting that the timing for the proposed visit had passed, Mr Joel Cadano advised that if the visa was granted, he desired to travel to Australia in September 2024 and remain here for 1 month before departing. He indicated that he would be travelling alone and that his wife would be remaining in the Philippines. There is no evidence that his wife has lodged a visitor visa subsequent to the earlier refusal of 30 April 2024 and that she holds a visa to enable her to travel to Australia.

17. In the visa application form, Mr Joel Cadano declared that he had previously travelled to Australia. According to Department records, Mr Joel Cadano has the following Australian migration history:

18. He arrived in Australia holding a visitor visa on 11 July 2014 and departed Australia on 7 September 2014 holding this visa. On 11 September 2014 that visa expired. Conditions 8101, 8201, 8503 and 8531 were imposed on this visa. There is no evidence Mr Joel Cadano failed to comply with those conditions.

19. He arrived in Australia holding a visitor visa on 9 December 2016 and departed Australia on 6 January 2017. On 6 January 2017 that visa expired. Conditions 8101, 8201, 8503 and 8531 were imposed on this visa. There is no evidence Mr Joel Cadano failed to comply with those conditions.

20. He arrived in Australia holding a visitor visa on 13 May 2018 and departed Australia on 10 June 2018. On 10 June 2018 that visa expired. Conditions 8101, 8201, 8503 and 8531 were imposed on this visa. There is no evidence Mr Joel Cadano failed to comply with those conditions.

21. At the Tribunal hearing, Mr Joel Cadano told the Tribunal that he did not apply for a visa to remain in Australia during any of these visits to Australia. This is consistent with the Department records. The Tribunal also notes that Mr Joel Cadano departed on or before the expiration of those visitor visas.

22. In the visa application form, Mr Joel Cadano indicated that his family unit consisted of a father who was born in the Philippines, and three sisters who were born in the Philippines. He identified that two of his sisters were Australian citizens and resided in this country, and one sister remained in the Philippines. At the Tribunal hearing, the Tribunal was told that Mr Joel Cadano’s mother had passed away (which would accord with the reason she was not included in the visa application form as a family member).

23. Concerning the two siblings in Australia, one of those siblings is the review applicant. In the visa application form, funding for the cost of staying in Australia was identified as being provided by the review applicant, and included with the visa application were payslips confirming the review applicant’s employment suggesting that she had the means to meet these expenses, as well as a transaction statement for an account held in the review applicant’s name.

24. Department records for both siblings in Australia demonstrate that they are Australian citizens and came to Australia via partner visas. There is no evidence that either of those siblings have adverse Australian migration histories, or migration histories that may suggest that Mr Joel Cadano will come to Australia and refuse to depart once he is here.

25. In the visa application form, Mr Joel Cadano was identified as running a mixed business selling basic necessities in the Philippines, as well as managing the review applicant’s condominium in that country. It was also claimed that he was a part-time ‘grab driver.’ Included with the visa application form as a business registration certificate for a local government authority in the Philippines confirming the registration of the mixed business. There was also property documents for real estate in the Philippines, as well as a bank statement identifying that Mr Joel Cadano had funds held in a bank in the Philippines. In the course of the review, updated bank statements for accounts held in the name of Mr Joel Cadano in the Philippines were provided.

26. At the Tribunal hearing, the Tribunal was told that Mr Joel Cadano was no longer a ‘grab driver’ as he now did deliveries or was a courier driver, and had done so for a month. Electronic records showing income related to his work as a driver were also provided. He confirmed he continued to manage the condominium and operate the mixed business, which he identified as operating for 10 years. He told the Tribunal that his wife would manage the business when he was in Australia and noting that he and his wife had originally each applied for visitor visas, they had made arrangements for a relative of his wife to manage that business had both of them been granted visas to come to Australia.

27. At the Tribunal hearing, Mr Joel Cadano told the Tribunal that he was a Roman Catholic and and ethnically Filipino. He was not involved in any political activity in the Philippines and had not had any problems with the authorities. He was not a drug user or a drug addict and was not using the visitor visa as a means to escape from the Philippines and not return to that country.  Mr Joel Cadano told the Tribunal that if his intention was to come to Australia and not comply with visa conditions or to remain in Australia once he was here, he would have said that to the review applicant.

28. The review applicant confirmed that Mr Joel Cadano had not said anything to her to suggest he was coming to Australia and would breach visa conditions, or come to Australia and remain here permanently. The review applicant told the Tribunal that, to the best of her knowledge, the oral evidence provided by Mr Joel Cadano was the truth. Mr Joel Cadano identified his incentives to return to the Philippines as the presence of his wife, his business and the responsibility looking after the review applicant’s condominium.

29. Mr Joel Cadano told the Tribunal hearing that he understood the conditions that would be imposed on the visa if granted and he agreed to comply with them. The Tribunal discussed the imposition of conditions 8101, 8201, 8501 and 8503. The Tribunal was not of the view that condition 8558 would be imposed, because Mr Joel Cadano sought the visitor visa for a period of less than 12 months.

    FINDINGS AND REASONS

30. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in respect of Mr Joel Cadano.

31. The Tribunal to require to be satisfied that Mr Joel Cadano genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether he 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.

32. In considering whether Mr Joel Cadano genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

33. The evidence is that Mr Joel Cadano has travelled to Australia three times previously. Each of those visas were subject to conditions. There is no evidence the visa applicant breached any of those conditions. The evidence is that Mr Joel Cadano departed Australia during the currency of those visas and did not overstay his stay in Australia.

34. Mr Joel Cadano’s positive Australian migration history is a factor that the Tribunal takes into account in favour of finding that he genuinely intends to stay temporarily in Australia for the purpose for which the visitor visa would be issued.

35. In considering whether Mr Joel Cadano genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, the Tribunal must consider whether he intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)).

36. Mr Joel Cadano made various declarations in the visa application form that touched on the proposed conditions indicating he could comply with those conditions, and gave oral evidence at the Tribunal hearing indicating that he understood the conditions that would be imposed on the visa if granted after the Tribunal took the applicant though each and every one of those conditions. The visa applicant agreed to comply with those conditions. Given the considerations in ‘other relevant matters’ as discussed below, the Tribunal is satisfied that Mr Joel Cadano genuinely intends to comply with the conditions that would attach to the visitor visa if granted.

37. Mr Joel Cadano’s genuine intention to comply with visa conditions is a factor that the Tribunal takes into account in favour of finding that he genuinely intends to stay temporarily in Australia for the purpose for which the visitor visa would be issued.

38. In considering whether Mr Joel Cadano genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, the Tribunal must consider all other relevant matters (cl 600.211(c)).

39. The evidence is that Mr Joel Cadano is not using the visitor visa as a means to escape the Philippines and return to that country once he is in Australia. The evidence is that Mr Joel Cadano does not intent to lodge any visa to remain in Australia once he arrives in this country. The evidence is that Mr Joel Cadano has a wife who will remain in the Philippines while he travels to Australia as she is not planning on travelling with him.

40. The evidence is that Mr Joel Cadano owns businesses in the Philippines and has responsibilities in that country. The evidence is that the applicant has no personal security concerns that may result in him refusing to return to the Philippines after his arrival in Australia. The Tribunal is satisfied that Mr Joel Cadano’s incentives to return to the Philippines outweighs his incentives to remain in Australia.

41. The absence of any evidence or integrity concerns concerning Mr Joel Cadano’s business and personal ties to the Philippines demonstrates that the other relevant matters favour a finding that Mr Joel Cadano genuinely intends to stay temporarily in Australia for the purpose for which the visitor visa would be issued.

42. Concerning Ms Neydie Cadano,  the Tribunal has concluded that it has no jurisdiction to review the decision made refusing Ms Neydie Cadano. This is because the review application was withdrawn in respect of that visa applicant.

43. Concerning the review related to the decision to refuse Ms Neydie Cadano a visitor visa, as detailed in the background section of this decision record, the review application was withdrawn by the review applicant.

    CONCLUSION

44. Taking into account the considerations imposed by cl 600.211, the Tribunal finds that Mr Joel Cadano genuinely intends to stay temporarily in Australia for the purpose for which the visitor visa would be issued, namely a visit to see Australian relatives.

45. Therefore, the Tribunal finds that Mr Joel Cadano satisfies cl 600.211 of Schedule 2 to the Regulations.

46. As the review application has been withdrawn in respect of Ms Neydie Cadano, the Tribunal has no jurisdiction to review the decision to refuse her a visitor visa.

    DECISION

47. The Tribunal sets aside the decision dated 30 April 2023 refusing to grant Mr Joel Cadano a Visitor (Class FA) visa and remits the visa application back to the delegate for reconsideration, with a direction that visa applicant satisfies the following criteria for the grant of the visa:

    · cl 600.211 of Schedule 2 to the Regulations.

48. The Tribunal has no jurisdiction to review the decision dated 30 April 2023 refusing to grant Ms Neydie Cadano a Visitor (Class FA) visa.

    Nathan Goetz

    
    

    Member