Camer (Migration)

[2020] AATA 2797

Camer (Migration) [2020] AATA 2797 (6 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Isabelita Zingalaua Camer
Ms Ann Charlotte Camer

CASE NUMBER:  1806588

DIBP REFERENCE(S):  CLF2016/50555

MEMBER:Helena Claringbold

DATE:6 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 06 March 2020 at 1:27pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – ‘remaining relative’ of an Australian relative – ‘no near relatives’ requirement – false or misleading information in a material particular – family composition – failure to declare a brother – waiver of requirement – compassionate or compelling circumstances – full integration into the Australia society – strong family ties – repeated provision of false and misleading information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15; Schedule 2, cls 835.212, 835.221, 835.223; Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 23 August 2016, Ms Isabelita Zingalaua Camer, also known as Jane, the applicant, applied for an Other Family (Residence) (Class BU) visa. The application was made on the basis that she is the remaining relative of Ms Victoria Camer, the sponsor.

2. On 23 August 2016, a delegate of the Minister for Immigration refused to grant the visa. The delegate was not satisfied that the applicant was a remaining relative as defined.  The delegate was also not satisfied that the applicant met Public Interest Criterion (PIC) 4020.

3. Therefore, the applicant did not meet cl.835.212 and cl.835.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). As a result the secondary visa applicant did not meet cl.835.321 of Schedule 2 to the Regulations. On 14 March 2018, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

4. On 11 February 2020, the applicants appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the secondary visa applicant, Ms Victoria Camer, Mr Joseph Camer and Mr Barry French.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affair’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

7. The first issue in this case is whether the applicant, at the time of application, was the remaining relative (as defined), of an Australian relative. The second issue is whether the applicant satisfies Public Interest Criteria 4020.

   BACKGROUND ON THE EVIDENCE

8. The applicant was born in 1973 in Manila, Philippines. Her father is deceased.  Her mother and six siblings live in Australia. She has another sibling who lives in the Philippines.  In 1998, the applicant gave birth to her daughter in the Philippines. The biological father of the child is Mr Anthony Wabe Benabe.

9. In June 2000, the applicant and her daughter entered Australia as the holder of visitor visas. On 5 December 2000, they became unlawful non-citizens and remained so for over 10 years. In August 2011, the applicant approached the Department to regularise her status. On 16 August 2011, she lodged an application for a Remaining Relative Subclass 835 visa with her daughter as a secondary applicant. The application was refused on the basis that the Schedule 3 Criterion of the Regulations, which requires that an application be validly made within 12 months of the expiry of the last substantive visa, was not met. On 2 December 2013, the former Migration Review Tribunal (MRT) affirmed the decision. The MRT referred the matter to the Minister, noting that all the applicant’s close relatives lived in Australia. The Minister granted the applicants Visitor visas Subclass 600 noting that the applicant had no close relatives in the Philippines.

   Is the applicant a remaining relative of an Australian relative?

10. To be granted a Subclass 835 visa the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application, and continue to be a ‘remaining relative’ at time of decision: cl.835.212 and cl.835.221 of Schedule 2 to the Regulations. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

11. Regulation 1.15(1)(c) requires that the applicant  and the applicant’s spouse or de facto partner if any, have no  ‘near relatives’ other than those who are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

12. 'Near relative' for these purposes is defined in r.1.15(2) of the Regulations and means a person who is a parent, brother, sister, step-brother, step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a 'dependent child'; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner. There are no exemptions to the definition of near relative in r.1.15(2).

13. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

14. The applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia. Additional provisions apply if the applicant is an adopted child.

    No near relatives: r.1.15(1)(c)

15. At the time of application the applicant provided completed and signed a Form 80 and a Form 47OF.  She declared that all her living family members were Australian citizens, permanent residents or New Zealand citizens and also declared her family members as follows:

    ·Mother, Maura Camer DOB 1933

    ·Father, Benigno Camer DOB 1932 deceased

    ·Sister, Teresita Ramos DOB 1957

    ·Brother, Angelito Camer DOB 1958

    ·Sister, Victoria Camer Estacio DOB 1962

    ·Sister, Elizabeth Manguba DOB 1965

    ·Sister, Margie Saludo DOB 1967

    ·Brother, Joseph Amel Camer DOB 1969

16. Information in the delegates decision is as follows: Departmental records confirmed that the applicant’s family members listed above were Australian citizen or permanent residents, who were usually resident in Australia; and

    Integrity checks conducted by the Department found the following:

    ·On 13 June 2000, the applicant’s mother spoke with an officer in the Department’s Rockdale Regional Office about applying for a visitor visa for the applicant. She told the officer that she had eight children.

    ·In December 2009, the applicant’s sister, Ms Elizabeth Manguba, declared in her partner visa Subclass 820/801 application that she had a brother, Mr Roberto Camer DOB 1960, who resided in the Philippines.

    ·Integrity checks conducted by the Department’s Manilla office confirmed the following:  that Mr Roberto Camer is the applicant’s brother. He was not an Australian citizen, permanent resident or eligible New Zealand citizen and was not usually resident in Australia.

17. On 27 January 2017, the applicant provided a statutory declaration in response to the above information and stated the following:

    ·Not declaring her brother was an oversight.

    ·She has lived in Australia for nearly 18 years and has never spoken or had contact with Roberto in that time and cannot recall the last time she saw him.

    ·She was a small child when she last saw Roberto and he didn’t live with her when she was growing up and in her mind Roberto had never been relevant in her life.

18. In a statement dated March 2018, the applicant stated the following: she grew up believing that she had two brothers and Roberto never crossed her mind. She doesn’t know whether he is still living. These are the reasons why she didn’t declare him on the visa application. In the past 18 years all she has done is care for her family.  

19. The applicant told the Tribunal the following: she didn’t grow up with Mr Roberto Camer and wouldn’t recognise his face. She didn’t have a relationship with him and does not remember when he left the family home.  In her heart and mind he is not her brother.

20. The Tribunal considered the evidence individually. There is no evidence before the Tribunal that, at the time of application Mr Roberto Camber was deceased.  The evidence is that, at the time of application, the applicant had a brother, Mr Roberto Camer.  At that time Mr Roberto Camer was not an Australian citizen, permanent resident or eligible New Zealand citizen and was not usually resident in Australia.

21. Therefore, at the time of application, the applicant had a near relative who was not an Australian citizen, permanent resident or eligible New Zealand citizen who was not usually resident in Australia. As a result, at the time of application, the applicant does not meet the requirements of r.1.15(1)(c) of the Migration Regulations.

22. Therefore, the applicant does not meet cl.835.212 of Schedule 2 to the Regulations.

23. As the applicant has not met the criterion for the grant of the visa, it follows that the secondary visa applicant is not a member of the family unit of a person who appears to satisfy the criterion for the grant of the visa.

24. Therefore, the secondary visa applicant does not meet cl.835.321 of Schedule 2 to the Regulations.

25. There is no evidence before the Tribunal that at the time of application the applicant claimed to be a carer of an Australian relative, as required by cl.836.212, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123B(3)(d) of Schedule 1 to the Regulations. The applicant is therefore not entitled to the grant of a Subclass 836 (Carer) visa. There is no evidence or claims made that the applicant is an Aged Dependent Relative, therefore the applicant cannot meet cl.838.212 of Schedule 2 to the Regulations.

    Public Interest Criterion 4020

26. The next issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.835.212 and 835.223 for the grant of the visa. Broadly speaking, this requires that:

    ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

    ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

    ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

    ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

27. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B).

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?

28. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

29. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

30. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

31. As detailed above at the time of the visa application the applicant provided a signed Form 47OF dated 8 August 2016 and a signed Form 80 dated 2 August 2017.

    ·At question 57 which asks the applicant to give details of all her other family members the applicant listed her parents and six siblings as detailed above.

    ·At question 36 on the form 80 she declared ‘I overstayed in Australia together with my daughter for I have no reason to go back because all my family are here’.  She also stated that she had been refused an application for a remaining relative visa in 2011.

32. As detailed above the Department conducted integrity checks which revealed that the applicant had failed to declare that she had a brother, Mr Roberto Camer who was not an Australian citizen, permanent resident or eligible New Zealand citizen and was not usually resident in Australia.

33. Information in the delegate’s decision is as follows: In August 2011, the applicant applied for a Remaining Relative (Subclass 835) visa.  Integrity checks on the information she provided in that application found she did not disclose her brother Mr Roberto Camer. However, the visa application was refused on other grounds not related to the non-disclosure. The Migration Review Tribunal (MRT) affirmed the decision and stated in the decision record that the applicant declared that she had ‘no direct family members who continued to live in the Philippines’. The MRT referred the matter to the Minister for consideration. A review of the information provided to the Minister shows that the applicant made claims to the Minister that all her siblings resided in Australia. The Minister granted the applicant a Visitor Visa Subclass 600.

34. In January 2018 and March 2018, the applicant stated the following: she didn’t set out to mislead or deceive the Department. The omission was an oversight. She has lived in Australia for nearly 18 years and has never spoken or had contact with Mr Roberto Camer in that time and cannot recall the last time she saw him. She was a small child when she last saw him. He didn’t live with her when she was growing up and was not relevant in her life. She grew up believing that Joseph and Angelito were her only brothers. She has an ingrained fear of dealing with government agencies and has struggled throughout the visa process.

35. Authors of third party statements dated March 2018 stated the following: Ms Teresita Ramos stated the applicant was little when Mr Roberto Camer left the house because of his drug addiction and being wanted by the authorities or the police. His whereabouts are unknown.  Mr Angelito Camer stated that his family lived in poverty which Roberto Camer didn’t enjoy.  He became involved in drugs, gambling and stealing and was suspected by the police of criminal activity and left the house.  His father who was a carpenter was unaware of Roberto’s activities. Ms Victoria Camer Estacio stated that the applicant never saw Roberto Camer as he had left home and her family never considered him a brother.  Her parents tried to find him without success. Ms Elizabeth Manguba stated she is vague about the last time she saw Roberto. He was constantly in trouble and would disappear for days and sometimes weeks. She does not think of him as a brother but someone who came and went and thinks her siblings would feel the same. Ms Margie Saludo stated that she does not have much memory of Roberto.  He left the family home when the applicant was four years old and it would have been hard for her to understand what was happening.

36. The Tribunal put the core of the information the subject of the s.376 certificate to the applicant under s.359AA of the Act. The information which is on the Department’s file is as follows:

    ·At the time of application, Mr Roberto Camer who was born in 1960 was the applicant’s brother. He was not an Australian citizen, permanent resident or eligible New Zealand citizen who was usually resided in Australia. Departmental records show that Mr Roberto Camer had not entered Australia.

    ·In June 2000, the applicant and the secondary visa applicant entered Australia as the holder of visitor visas. On 5 December 2000, they became unlawful non-citizens and remained so for over 10 years. In August 2011, the applicant approached the Department to regularise her status.

    ·On 16 August 2011, the applicant lodged an application for a Remaining Relative Subclass 835 visa with her daughter as a secondary applicant. The application was refused on the basis that the applicant did not meet the Schedule 3 criterion. On 2 December 2013, the former Migration Review Tribunal (MRT) affirmed the decision. In the MRT decision the member wrote ‘the applicant now has no direct family members who continue to reside in the Philippines’. 

    ·On the information the applicant provided to the MRT, the matter was referred to the Minister.  The MRT noted that all the applicant’s close relatives lived in Australia.  The Minister after considering the information the applicant provided and the circumstances of the case, including that the applicant had no relatives remaining in the Philippines, granted the applicant and the secondary visa applicant a visitor visa.

37. The applicant responded at the Tribunal hearing and stated the following: she didn’t grow up with Mr Roberto Camer and wouldn’t recognise his face. She didn’t have a relationship with him and does not remember when he left the family home.  In her heart and mind he is not her brother. Her brothers and sisters told her that he was a violent person. She didn’t declare him as her brother because he was missing and she didn’t think that not declaring him was against the law. Her mother and her sister Elizabeth declared him on their visa applications.  However, the remaining family members did not declare him in their visa applications. When she applied for the visa under review, she thought that the Department knew about her circumstances and waited for the Department to put further questions to her.

1. The Tribunal does not accept the argument that Mr Roberto Camer was not considered to be the brother of the applicant and/or her siblings. The evidence is that he was born three years after his eldest sibling and thirteen years before the visa applicant. Other evidence is that he lived with his siblings until he departed the home when the visa applicant was four years old. This would have made him approximately 17 years old when he left home. After the visa refusal, she provided information about not living with him or remembering the last time she saw him. It is clear from the applicant’s evidence, that she was fully aware that Mr Roberto Camer was her brother. It is evident that the applicant’s mother declared that she has eight children and the applicant’s sister declared her brother Roberto, in December 2009 when she applied for a partner visa. The Tribunal does not accept that the applicant’s not declaring her brother Roberto was an oversight.  It also does not accept that the information was given because of her fear of the authorities. The applicant successfully worked with the Australian authorities when she applied for and was granted visitor visas for herself and the secondary visa applicant to enter Australia.  She again worked with the Australian authorities when she lodged the applications for Remaining Relative visas and the application for review of visa refusals with the MRT and a request for Ministerial intervention and an application to the Tribunal.  The Tribunal is of the view that the applicant could not have been under any misapprehension of the importance of her having a relative in the Philippines and its relevance to her meeting the criterion for a remaining relative visa.  

2. On the evidence, the applicant provided false and misleading information about her family composition in the application for the remaining relative visa she lodged in August 2016.

3. The Tribunal is satisfied that the applicant in omitting to declare Mr Roberto Camer as her brother and in omitting to declare that he was not a Australian citizen, permanent resident or eligible New Zealand citizen who was not usually resident in Australia, that she provided incorrect information about her family composition which was false and misleading information in a material particular, at the time it was given in relation to the visa application and that the information was not disclosed to assist the visa application and to meet cl.835.212 of Schedule 2 to the Regulations.

4. Therefore, the applicant does not meet PIC 4020(1).

   Should the requirements of PIC 4020(1) or (2) be waived?

5. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

6. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

   Compelling circumstances that affect the interests of Australia

7. While the applicant has not made any claims about her employment, the Tribunal considered  a letter dated January 2018, from the applicant’s employer who stated that she has worked with the company as a process worker since September 2016 and is an honest, diligent and hardworking employee.  The Tribunal accepts that the employer may face some difficulties fulfilling the role the applicant has in the company, should she depart Australia.

   Are there compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa?

8. Prior to and at the Tribunal hearing the sponsor provided information for consideration against compassionate or compelling circumstances that justify the granting of the visa as follows.

9. In October 2012, the applicant stated the following: that she left an abusive relationship in the Philippines and came to Australia to remove herself and her daughter from the relationship.  Her daughter has grown up with her family in Australia and is close to her grandmother. Her daughter is a good student and wants to study at university. Their returning to the Philippines would see them without a place to stay and without help and no future for her daughter and if anything happened to the applicant her daughter would be alone. The applicant’s mother would not be able to stay with them because of the pollution and her poor health.

10. In January 2018, the applicant stated the following: she has struggles throughout the visa process. The experience has been traumatic as she feared losing her family and felt guilty for not having her affairs in order which would impede on her daughter’s educational prospects and future. Her previous ‘de facto’ relationship with her daughter’s father ended in 1999.  They have not heard or received any support from him since that time. She came to Australia to be with her family. She has no friends or family in the Philippines.  All of the family she is close to are in Australia.  If she and her daughter were sent back to the Philippines they would have nowhere to go.

11. Her two sisters have been diagnosed with breast cancer and are receiving chemotherapy. She is close to her niece who has severe autism and also has a dependency on her. She assists her sisters and niece by assisting with their care and providing emotional support. She is the main carer for her elderly mother who refuses care from any of her other siblings.  Both her mother and niece live with her. She has been working since September 2016 as a process worker.  Her daughter has lived in Australia since she was one years old and knows no other way of life. . She is a commendable student and has been offered a place to study at the University of Sydney but can’t accept the offer because of her status in Australia. If the applicant and her daughter have to leave Australia they will be displaced. Her daughter cannot speak Tagalog and has no understanding of the culture in the Philippines. She would be unable to continue her studies. The applicant and her daughter have no assets of any description in the Philippines and most of all no family.

12. In March 2018, the applicant stated the following: she looks after her mother, her sisters and her niece. She lived with her brother Joseph and cared for her niece. She also lived with her sister Victoria when she was diagnosed with breast cancer. When her sister Teresita was diagnosed with breast cancer she went straight to her house after her work. She lives with her daughter and her mother. Her mother is unwell and they both care for her. Her daughter finished year 12 and wants to go to university.  When she thinks of her family members and being apart from them and her daughter’s dream being taken away from her, she struggles every day and it is hard for her emotionally.

13. In an undated statement witnessed in January 2018 and another statement of March 2018, the secondary visa applicant stated the following: she is 19 years old. She has developed strong friendships and does not know what she would do without them. It would ‘kill’ her if she were separated from them. Her aim is to attend university and to open a psychology  clinic. Her further education is problematic because she is not a permanent resident and cannot afford to pay the fees required as an overseas student. She does not want to leave Australia which she considers to be home. She is close to her family in Australia and they have supported and support her. She loves her family and grandmother very much. Everything she remembers is of Australia and her family. If she had to go to the Philippines she would feel a void inside of her. She knows nothing about the Philippines. Her sense of identity would erode and her soul would be destroyed.  She wants to remain in Australia with her family and friends and to feel secure and accomplish her dreams. She wants to help other people by becoming a psychologist.

14. Various character references speak to the secondary visa applicant’s leadership skills and academic achievements and her good character. 

15. Third party statements from the applicant’s siblings who live in Australia collectively attest to the following: the secondary visa applicant entering Australia when she was young and living in Australia throughout her schooling.  Her intellect and achievement in her education.  Her strong relationship with her family members in Australia and particularly her grandmother and with her peers. The assistance, care and help the applicant has given her siblings and the ongoing care she proves her mother who is elderly and frail with health conditions.  The separation of the applicant and the secondary visa applicant from the family members and particularly the applicant’s mother would cause her health conditions to worsen and leave her without the care of the applicant and secondary visa applicant who are best positioned to care for her. Mr Joseph Arnel Camer stated that he and the applicant grew up together. They became separated when the applicant lived with her boyfriend.  They resumed living together when her boyfriend abandoned her and her daughter. The applicant lived with him and helped care for his daughter. His mother needs care 24 hours a day seven days a week.

16. A copy of a Certificate of Marriage has been provided.  It recorded that the applicant married Shane Christopher Farrant on 9 February 2019, in Hurstville Sydney.  Photographic evidence depicts the applicant and others at what appears to be her wedding.

17. In February 2020, the applicant provided the Tribunal with a copy of an application for a Marriage Certificate and a Transcript of Academic Record for the secondary visa applicant for a Certificate IV in Community Services.

18. The applicant told the Tribunal the same information as detailed in paragraphs 43 to 46.  In addition she stated the following: that she has lived in Australia for twenty years.  Everything she did was for her daughter, to provide her with a safe environment. Her daughter has lived in Australia since she was one years old. She is Australian in every way and has never lived in the Philippines.  Her daughter has been an exemplary student and a high achiever and has always aimed at a university education.  She was desolate when the visa application was refused and her dreams of accepting a placement offer at university dashed. She could not continue with university education because the costs were prohibitive. If she had to live in the Philippines she would be destroyed.

19. The secondary visa applicant finished year 12 two to three years ago.  She began working and remained at her first position for about a year. She then worked part time for a charity for about three to four months before beginning to work full time for an insurance company where she continued to work. She began studying at TAFE in 2019 undertaking social studies which she is funding the $9,000 to $12,000 fees with the money she saved from her salary.  

20. From 2000 until 2019, the applicants lived between family members’ homes and the applicant helped them with their needs. In February 2019, the applicant married Mr Shane Christopher Farrant, who is a New Zealand citizen. Since that time the applicant and Mr Farrant and the secondary visa applicant have lived together as a family unit. Her mother who is 87 years old has lived with her older daughter sister for the past year. The applicant has been employed fulltime for the last three years and continues in fulltime employment.  Her husband is also employed fulltime. Her mother told her that all she wishes for is that the applicants can remain in Australia and be close to her.

21. The secondary visa applicant told the Tribunal the following:  her dream is to become a social worker. She began studying at TAFE in August 2019 and expects to finish her study there in 2021.  She loves her family in Australia and does not want to be separated from them. Australia is her sense of identity and her home.  

22. In 2018 Ms Teresita Ramos stated the following: she was diagnosed with breast cancer in 2017. The applicant helped her and after her work would visit and also took her for medical appointments. The applicant’s mother is more than 80 years old and the applicant is the best person to look after her. Her mother stated that she wants the applicant to look after her until the end of her life. The secondary visa applicant came to Australia when she was one years old.  She is an intelligent woman and has a special bond with her grandmother.

23. In 2018 Ms Teresita Ramos stated the following: the applicants returning to the Philippines would put a great strain on her mother who is elderly.  Her mother is dependent on the applicant for care and there is no one else who can care for her mother due to their work commitments. The secondary visa applicant has had outstanding results in her studies which would also suffer if she had to return to the Philippines.

24. In 2018 Ms Teresita Ramos stated the following: her mother has been with the applicant since her arrival in Australia and has cared for her mother.  Her mother would be devastated if the applicants went to the Philippines. The secondary visa applicant is kind hearted, hardworking and a high achiever. She considers herself Australian and that Australia is her home. All she asks is that the secondary visa applicant can finish her studies. 

25. In 2018 Mr Angelito Camer stated the following: his mother needs the applicants to remain in Australia as they are the joy of her life. The applicant is the person to care for his mother. The applicant is committed to ‘serve’ his mother forever. Should his mother be separated from the applicants she would find it difficult and her medical conditions would be affected.

26. In 2018 and at the Tribunal hearing Ms Victoria Camer provided information as follows: the applicants have been in Australia for a long time. The family and especially her mother want them to remain in Australia. Her mother becomes depressed and ill when she thinks about the applicants’ circumstances. In 2016, she was diagnosed with breast cancer and continues to have treatment. At that time the applicants moved into her home and cared for her, most especially during her time of treatment. The applicant is always there to provide her with support. She does not want to be separated from her sister and her niece and would find the added stress and anxiety difficult if they had to depart Australia. The applicant has been a support to her and the secondary visa applicant has tried hard to achieve under difficult circumstances. They consider the applicants to be their only remaining relatives.  They have no place or home or family if they return to the Philippines. 

27. In 2018 and at the Tribunal hearing Mr Joseph Camer provided information as follows: he left the Philippines in 2003 and has not been back there. The applicants lived with him and his family for three to four years. The secondary visa applicant grew up with his mother who treats her like her own daughter. The applicants moved in to his home and lived with him for four years.  They cared for his daughter who has been diagnosed with autism. When he stopped work to care for his daughter the applicants moved to live with his sisters but continue to help care for his daughter.   He does not know if the applicant could survive in the Philippines because of the cost of living and wages. He provided the Tribunal with generic information downloaded from Facebook about a monthly salary and expenses in the Philippines compared to Australia.  He also provided a document which gives information about a ‘new minimum wage increase’ in the Philippines effective from November 2018. He is also concerned about the effect the applicants departure from Australia would have on his elderly mother. He is also concerned that the applicants would ‘be gone forever’.

28. Mr Barry French in a written statement of January 2018 and before the Tribunal provided the following information: he has known the secondary visa applicant for the last six years in his capacity as Deputy Principal of the school she attended.  He is proud to have been her teacher and mentor. She is of the highest integrity and excelled in her studies and within the school environment. She was elected school captain in year 12 which she completed in 2017. She embraced the school environment and showed leadership and social skills.  Within a diverse cultural school community she advocated for fellow students and acted as a mentor.  She was liked by teachers and students.  It would be unjust to see her leave Australia where she has lived since she was an infant. She has no connection, language or history with her place of birth.

29. This decision is a synopsis of the information before the Tribunal. The Tribunal considered the evidence individually and as a whole.  The Tribunal accepts the following: the secondary visa applicant entered Australia when she was one years old.  She remained unlawfully in Australia for more than ten years. She completed her junior and high school education in Australia and is fully integrated into the Australian society. She has a large number of family members who are Australian citizens and reside in Australia and their relationship with her is strong.  In particular, her grandmother does not want to be separated from her. She is held in high regard amongst her peers. Her previous Deputy Principal considers her to be a person who would contribute to the Australian society.  The Tribunal empathises with the circumstances that the secondary visa applicant finds herself in. 

30. The Tribunal accepts the following: the visa applicant has lived in Australia for 20 years.  She and was an unlawful-non-citizen for more than ten of those years. She has a large number of family members who are Australian citizens and reside in Australia.  Over the years she has lived with her family and provided them with practical and emotional support.   She continues to provide support to her family. The applicants’ departure from Australia may present her family with difficulties and cause them distress. The applicant’s mother lives with her other daughter. No claims have been put forward with regard to the applicant’s relationship with her husband.  However even accepting their relationship at face value, her husband may be presented with challenges due to being separated from the applicant.  

31. However, the applicant repeatedly provided false and misleading information to the Department, to the MRT and to the Minister. She did not declare that she had a brother who was not an Australian citizen, permanent resident or eligible New Zealand citizen who was not usually resident in Australia, in the application for a Remaining Relative visa lodged in 2011.  She withheld this information in her review before the MRT and to the Minister.  She again withheld this information when she lodged the application under review.  This information was and is a primary consideration for the grant of a Remaining Relative visa. On balance and when considering the applicant’s disregard for Australia’s immigration laws over many years, the Tribunal does not consider that there are compelling circumstances that affect the interests of Australia, or that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa.

1. For the reasons above, the Tribunal is not satisfied that the requirements of PIC 4020 should be waived.

2. Accordingly the applicant, at the time of decision, does not meet cl.832.223 of Schedule 2 to the Regulations.

   Other considerations

3. The Tribunal told the applicant the following: A non-disclosure certificate has been issued pursuant to s.376 of the Migration Act 1958 (the Act) in relation to certain material which is on the Department of Immigration and Border Protection’s (the Department) file. The Department has sought to restrict the disclosure of folios 95, 170-171, 177-178, 185-187, 183, 192, 194 and 252 on the basis that disclosure of this information contained in these folios would be contrary to the public interest because these folios disclose lawful methods for preventing detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. The Tribunal considers that the s.376 certificate is not valid. The applicant was invited to comment on the validity of the certificate. The Tribunal will put the core of the information the subject of the s.376 certificate to the applicant and this is recorded in this decision record.

   DECISION

4. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

   Helena Claringbold
   Member