Dorney (Migration)

[2023] AATA 3834

Dorney (Migration) [2023] AATA 3834 (9 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ma Helen Dorney

VISA APPLICANT:  Mrs Teodora Tayoto

CASE NUMBER:  2215866

HOME AFFAIRS REFERENCE(S):          BCC2022/4372311

MEMBER:Stephen Witts

DATE:9 November 2023

PLACE OF DECISION:  Melbourne

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

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 09 November 2023 at 12:44pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – visiting sister – genuine temporary entrant – previous compliant travel – family ties and economic and social circumstances – documentary and oral evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1996 (Cth), Schedule 2, cls 600.211(a), 600.221, 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 Home Affairs on 26 October 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 19 October 2022. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 9 November 2023 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant, the sister of the review applicant, and from Ms Rosanna Mallia Bertiz, a sister of the applicants, and Mr Michael Dorney, the husband of the review applicant.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino (Tagalog) and English languages.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

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

12. The Tribunal finds that there is no evidence before it of any substantive visa breaches by either applicant.

13. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

14. The Tribunal notes that it has been provided with a copy of the delegate’s decision record dated 26 October 2022 by the applicants. In this decision it was asserted by the delegate that the applicants have provided insufficient evidence to support the claim that the visa applicant would be a genuine visitor to Australia noting a lack of incentive to return to her home country of the Philippines. The delegate contended that it noted that the visa applicant claims to be managing six rental properties but that there was insufficient evidence regarding this, also it considered the offer of support provided by her sibling in Australia but made a decision that it was not satisfied that the visa applicant would be a genuine visitor to Australia.

15. The Tribunal has also considered evidence provided by the applicants prior to the hearing including various photographs, some financial information, a certificate of title for land held in the Philippines, a certificate of title for land held in Victoria, a letter from the consulate of the Philippines in Victoria attesting to a power of attorney, a letter from the Bank of the Philippine Islands, a power of attorney, an ANZ bank account statement, a learner’s permit for Ms Rosanna Mallia born on 12 April 1972, payment advice for the review applicant’s husband Mr Michael Dorney, pay advice for the review applicant with Queensland Health, and other material. Also included was the copy of a subclass 600 visitor visa granted to the visa applicant in 2019.

16. The Tribunal notes that further information was provided on 29 October 2023 including flight information for the visa applicant for a flight to Australia in 2019, a medical examination for the visa applicant in the Philippines, a car registration held in the Philippines, covid vaccination material for the visa applicant, and other health material, material indicating that the visa applicant held a visitor visa from 23 July 2019, a bank account held in the Philippines with a balance of approximately PHP75,000 equating to approximately AU$2000, a list of family members indicating that the applicants are sisters and that they have two brothers and that their parents are deceased, and that the visa applicant plans to visit her sister and brother-in-law in their new home on the Sunshine Coast and engage in various tourist activities.

17. Also included was a statement dated 25 October 2023 from the review applicant and her husband stating that they are both Australian citizens would like to invite the visa applicant to visit here in Australia, that they have moved interstate from Victoria to Queensland, that she has visited them in Victoria in 2019 and stayed for three months, and that they would like her to visit this Christmas. It was stated that the review applicant works as a nurse and that she has had separation anxiety from her family as the pandemic meant that they weren’t able to visit the Philippines and that it was also stated that this has had a big effect on them.

18. It was also stated that she works as a nurse in Queensland and that her husband also works in aged care and that it is difficult to get annual leave for her to visit the Philippines and she would appreciate it if her sister could come to Australia and that healthcare workers in Australia have suffered from worse isolation and separation because of the nature of their occupation and that due to the lockdown in Victoria they moved to Queensland and would like her to visit.

19. The Tribunal also notes that other material was provided on 7 November 2023 and 8 November 2023 including more photographs, some vehicle ownership material for a vehicle in Australia, pay slips for the review applicant’s husband, employment details for Ms Rosanna Mallia Bertiz, employment ID for the review applicant, details of travel insurance for the visa applicant, and passport material for the review applicant’s husband.

20. At the hearing the Tribunal had a discussion with the applicants regarding the application.

21. The review applicant stated that she first arrived in 2003 on the spousal visa and that her current husband was the sponsor and that they have no children. She stated that her sister, the visa applicant, is separated and has one adult adopted son. She stated that the visa applicant trained as a hairdresser and worked in that field for some years and that their parents are now deceased and that she manages the family’s various rental properties on a full-time basis liaising with other members of the family. She stated that she also has two brothers and that they have five children between them. She stated that travel to and from the Philippines has been difficult over the last few years because of Covid and that she would like her sister to visit her here in Australia. She stated that she has a niece from the Philippines currently in Australia on a student visa.

22. The visa applicant’s other sister, Mrs Bertiz, stated that she first came to Australia in 2015 on a spousal visa and that she has visited the family back in the Philippines on several occasions over the last few years.

23. The review applicant also stated that her sister came to Australia in 2019 and stayed for three months in accordance with the currency of her visa requirements and that she returned home. It was stated that nothing has changed and that she will only be a visitor to Australia and that she has an incentive to return home to her home country noting her family ties, and her economic and social circumstances.

24. The Tribunal has considered the above very carefully and finds that it is most likely, demonstrated in particular by her previous visit to Australia, that the visa applicant will be a genuine visitor to Australia, and that this is also demonstrated by her family and economic ties in the Philippines.

25. For the above reasons the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl 600.211 are met.

    DECISION

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

    ·cl 600.211 of Schedule 2 to the Regulations.

    Stephen Witts
    Member