Donu (Migration)

[2020] AATA 5270

Donu (Migration) [2020] AATA 5270 (2 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Daini Tupou Donu

VISA APPLICANT:  Mrs Piniana Deborah Vunisalevu

CASE NUMBER:  1827559

HOME AFFAIRS REFERENCE(S):          BCC2018/3254219

MEMBER:Adrienne Millbank

DATE:2 December 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 02 December 2020 at 4:55pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – previous compliant travel – husband and children in home country – review applicant sponsor or contact person for large number of other family members, three of whom applied for protection visas – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.211, 600.222

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 11 September 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 is a 44-year-old national of Fiji. She has travelled to Australia before, on a Tourist (Subclass 676) visa, when she stayed from 9 October 1999 to 13 October 1999. The review applicant is her sister, a citizen of Fiji and a permanent resident of Australia. The review applicant first travelled to Australia on a Tourist (Subclass 627) visa in 1995; returned and subsequently stayed on temporary (student, business and work) visas; and was granted a Regional Employer Nomination (Permanent) (Subclass 187) visa in 2013. The review applicant has eight siblings: two live in Australia; five, including the visa applicant live in Fiji; and one lives in the UK. The visa applicant has a husband and five children, ranging in age from 20 to seven years, in Fiji.

3. The visa applicant applied for the visa on 28 August 2018. She indicated on her application form that she planned to arrive on 20 September 2018, and stay for up to three months. She indicated that she needed to be in Australia on 29 September 2018 in order to participate in a significant family occasion, the celebration of the 70^th birthday of her mother, her only surviving parent. At the time of decision, the visa applicant intends to come as soon as the COVID-19 travel restrictions are lifted, and to stay for around one month, for the purpose of staying and spending time with her mother.

4. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

5. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994. 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.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. The delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. Regarding the visa applicant’s incentives to return to Fiji, the delegate noted that the visa applicant had provided some evidence of ties to her home country, including family ties. However, the delegate was not satisfied that these ties were of significant weight to compel her to depart Australia at the conclusion of her proposed trip.

7. The review applicant appeared before the Tribunal on 1 December 2020 to give evidence and present arguments.

8. The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were raised by the review applicant in relation to holding a telephone hearing and the Tribunal is satisfied that the review applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

11. In the present case, the visa applicant seeks the visa for the purpose of a family visit, specifically, for the purpose of spending time with her mother. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

12. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

13. The last substantive visa held by the visa applicant was a Tourist (Subclass 676) visa. As noted, the visa applicant arrived in Australia on 9 October 1999 and departed on 13 October 1999. In her application form she stated that the reason for that visit was to ‘celebrate Fiji day in Melbourne’.  There is no information before the Tribunal to indicate that the visa applicant did not comply with the conditions of that visa.

14. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

15. The visa applicant indicated on her application form that she did not intend to study while in Australia. She indicated also that she had no paid employment in Fiji. At hearing, the review applicant stated that the visa applicant is occupied in Fiji caring for her children and tending to her small market garden and has no intention of working or engaging in study in Australia.

16. The Tribunal has considered all other matters relevant to the visa applicant’s claims to genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. (cl.600.211(c)).

17. The review applicant advised at hearing that the visa applicant’s husband was unemployed at the time of decision, and that he would care for the children while the visa applicant was visiting in Australia. She stated that she would pay all the expenses associated with the visa applicant’s visit, and that the visa applicant would stay with their mother, who lived only five minutes’ drive from her. She stated that the purpose of the visit was for the visa applicant to spend time with their mother. She stated that the visa applicant had missed out on family gatherings in the past, when she could have spent time with their mother, because the visa applicant couldn’t travel with a young family.

18. The Tribunal asked the review applicant why their mother couldn’t travel to Fiji to spend time with her daughter. The Tribunal put to the review applicant that their mother could spend time with her grandchildren and son-in-law as well as with the visa applicant, and she could also catch up with other family members. The review applicant acknowledged that their mother was fit and able to travel. She stated that her mother has only recently obtained Australian citizenship and is still waiting for her Australian passport, but when she receives it, she might travel to Fiji. The review applicant then stated that most of the family lived on one side of the island in Fiji, and the visa applicant and her family lived on the other, so when their mother travelled to Fiji, she wouldn’t spend time with the visa applicant. Also, the visa applicant was ‘tied up’ with her children, in Fiji.

19. The Tribunal did not find the claimed purpose of the visit, to spend time with her mother, and the arguments as to why the visa applicant has to come to Australia for this purpose, convincing.

20. The Tribunal put to the review applicant that she has sponsored or been the contact person in Australia for a large number, around 12, visitor visa applications, between 2015 and 2020. The review applicant stated in response that she has only sponsored or been the contact person for family members, mostly her siblings, who complied with their visa conditions including departing before their visas expired. She stated that some of the visitors she sponsored were family members of her first husband, and that these family members visited Australia to attend his funeral. She stated that she sponsored her second husband on a partner visa, in 2019, but he did not enter on a visitor visa; he was already in the country on a temporary business visa.

21. Following the procedure of s.359AA of the Act, the Tribunal advised the review applicant that it had information that would be the reason, or a part of the reason, depending on her comments in response, for affirming the decision under review. The information was in client ‘ICSE’ notes on the Departmental file, and was that three family members for whom she was the contact person in Australia for visitor visa applications, in 2016, lodged applications for protection visas onshore, and have stayed in the country. The Tribunal advised the review applicant that this information was relevant because it showed she had been the contact person for family members on the basis that they were genuine temporary entrants for the purpose of visiting family, but they were not genuine temporary entrants for the purpose of visiting family. If the Tribunal decided the visa applicant was similarly not a genuine temporary entrant for the purpose of visiting family, it would affirm the decision.

22. The Tribunal invited the review applicant to comment on the information and the Tribunal’s concerns, and advised her she could seek extra time. The review applicant did not seek extra time to consider her response. She acknowledged that the family members in question are her brother and his family, for whom she was contact person in 2016. She stated that her brother told her he had to apply to stay; that he couldn’t go back because of his previous army involvement. She advised that the protection visa applications were refused by the Department, but that her brother and family are still in Australia, waiting for reviews they have lodged with the Tribunal. She stated that her brother and his family were ‘taken out’ of the visitor visa stream. She stated that she sponsored her older sister to come to Australia on a visitor visa, and her older sister returned to Fiji.

23. The visa applicant has a husband and children in Fiji, three of whom are still attending school, and a market garden to tend. These are incentives for her to return. However, the visa applicant and her husband are unemployed, and no evidence was provided to the Tribunal that the visa applicant’s economic circumstances are such as to provide an incentive for her to return. The review applicant has been the contact person for other family members who have used visitor visas to enter the country, and then sought to stay. Further, the Tribunal is not convinced regarding the genuineness of the claimed purpose of the visit, and not convinced that the visa applicant would comply with the conditions of the visa.

24. For the above reasons the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are not met.

    DECISION

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

    Adrienne Millbank
    Member