Fagundez (Migration)

[2017] AATA 2462

Fagundez (Migration) [2017] AATA 2462 (22 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Carlos Alberto Fagundez

VISA APPLICANT:  Miss Sonia Carolina Fernandez Rivero

CASE NUMBER:  1703130

DIBP REFERENCE(S):  BCC2016/3554185

MEMBER:Mila Foster

DATE:22 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 22 November 2017 at 1:22pm

CATCHWORDS
Migration – Visitor (Class FA) visas – Subclass 600 (Visitor) – Tourist stream – De facto long distance relationship with the review applicant – Intention to visit temporarily

LEGISLATION
Administrative Appeals Tribunal Act 1975 s29
Migration Act 1958 ss 65, 338, 338(7), 347, 347(2)(c), 359AA, 411, 412
Migration Regulations 1994 rr 1.09(4), 1.09A(3), 4.02(4), Schedule 2 cls 600.211, 600.211(a)-(c), 600.611(3), 600.222

CASES

Nguyen v MIAC [2010] FMCA 847

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Before me is a review application lodged on 22 February 2017 which identifies the review applicants as Carlos Alberto Fagundez, Sonia Carolina Fernandez Rivero and Jonathan Gabriel Rodriguez Fernandez, and the visa applicant as Carlos Alberto Fagundez. However, the decision referred to in the review application form and the decision record attached to the form, is a decision made by a delegate of the Minister for Immigration on 17 January 2017 to refuse to grant Miss Rivero a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. Miss Rivero applied for the Visitor visa on 25 October 2016. She stated in her application that her (then) 14 year old son, Jonathan Gabriel Rodriguez Fernandez, would be travelling with her and identified Carlos Alberto Fagundez, as her spouse/de facto partner.

3. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case, Miss Rivero applied for the visa seeking to satisfy the primary criteria in the Tourist stream. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The delegate refused to grant the visa on the basis that Miss Rivero did not meet cl.600.211 because her circumstances would not encourage her to return to Uruguay within the period of the validity of the visa if it was granted.

   Jurisdictional issues

4. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act.[1] Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions. The decision which is the subject of this review according to the review application is the decision to refuse Miss Rivero a Visitor visa. There is no decision before me to refuse Jonathan Gabriel Rodriguez Fernandez a Visitor visa.[2] Thus, the Tribunal has no jurisdiction insofar as the review application purports to relate to Jonathan Gabriel Rodriguez Fernandez.

   [1] Or, in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975.

   [2] The review applicant testified before me that Miss Rivero believed her visa application included her son and only later discovered a separate visa application would need to be made by her son. However, before a Visitor visa application could be made for her son her Visitor visa application was refused.

5. Further, only decisions to refuse Visitor visas of the kind described in s.338(7) can be reviewed by the Tribunal and then the application for review may only be made by the relative referred to in s.347(2)(c). I am satisfied on the evidence before me that Miss Rivero and Mr Fagundez are de facto partners[3] and that Mr Fagundez is an Australian citizen[4] and thus that he has standing to apply for review. Further, I am satisfied that Mr Fagundez intended to apply for review in completing the review application form and that he substantially complied with the form. I thus find that the review application is a valid application for review made by Mr Fagundez in relation to the decision to refuse Miss Rivero the Visitor visa. I therefore hereafter refer to Mr Fagundez as the review applicant and Miss Rivero as the visa applicant.

   [3] For visa applications other than Partner visas, the decision-maker may have regard to the considerations in r.1.09A(3) when determining whether a person is the de facto partner of another but not required to do so: r.1.09(4). See also Nguyen v MIAC [2010] FMCA 847 (Burchardt FM, 10 November 2010).

   [4] Tribunal file, f.29.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The evidence before me includes the visa applicant’s Visitor visa application, a letter written by the review applicant in support of the review application,[5] the Department’s movement records database, the visa applicant’s Facebook profile,[6] and the testimony the review applicant gave at the Tribunal on 25 October 2017.

   [5] Tribunal file, ff.4-5.

   [6] Tribunal file, ff.33-46.

7. According to the visa application, the visa applicant wished to visit Australia for a period of 12 months with her son. They would be supported entirely by the review applicant during their visit. She listed her employment as home duties and her 27 year old daughter as a non-accompanying family member. Little supporting information or documentation, particularly about her relationship with the review applicant or why she wished to visit for a 12 month period, was provided. It is thus unsurprising that the visa application was refused.

8. In his letter to the Tribunal, the review applicant stated that he and the visa applicant met online in September 2011 and kept in contact after that. He said they have daily contact, lived together when he was in Uruguay from December 2012 until September 2013, and he has supported the visa applicant emotionally and financially. He indicated that the purpose of the proposed visit was for the visa applicant and her son to visit various Australian locations and to see what life in Australia would be like before deciding whether they would wish to migrate here. The review applicant stated that the visa applicant and her son would return to Uruguay before the expiration of their Visitor visas and then make any application to migrate to Australia.

9. In the hearing invitation the review applicant was invited to provide further information in support of the review application. He did not do so. He was also asked to provide the visa applicant’s telephone number to enable the Tribunal to take oral evidence from her by telephone. He did not do so. Further, when I accessed the visa applicant’s publically accessible Facebook profile, I observed that she did not indicate whether or not she was in a relationship and there seemed only a few photographs of a person who I surmised could be the review applicant. Thus, prior to the hearing I had doubts that the visa applicant and review applicant were in a de facto relationship and whether the visa applicant had a genuine intention to visit Australia temporarily.

10. However, at the hearing the review applicant provide further information, responded to all my questions and commented on information I put to him pursuant to s.359AA[7] in a clear, forthright, unexaggerated and spontaneous manner. He said he decided not to ask to the visa applicant to testify because he believed she would be anxious and not be able to testify well. He indicated that she was nervous even inquiring about the progress of her Visitor visa application. I found the review applicant to be a credible witness and thus have given his testimony considerable weight despite the limited supporting documentation and lack of testimony from the visa applicant.

    [7] In relation the visa applicant’s Facebook profile and photographs.

11. The review applicant testified that had not provided evidence of his relationship because he did not know what to provide. He said noted that he and the visa applicant were older (they are both in their 50s) and do not feel the need to display their relationship on Facebook or in photographs. In fact, he said, he disliked photographs. He said however that he and the visa applicant spoke to each other every single day by telephone. He showed me his mobile phone when requested without hesitation which confirmed this. He also showed me receipts on his mobile phone for small amounts of money he had sent the visa applicant which he said went a long way in Uruguay.  He said his relationship was an exclusive one even though he and the visa applicant lived apart. He said he loved her; she was an honest person who he had never heard speak ill of anyone. He said he had not returned to visit the visa applicant in Uruguay because he had been unemployed for a period of time but since he got a job in 2014 he has been trying to convince her to visit him in Australia because it is an the opportunity for her and her son to see another country and another way of life and to decide whether they could live here. He indicated that the visa applicant had only every left Uruguay once when she visited Argentina 25 years ago.

12. The review applicant emphasised that he had lived in Australia since he was 10 years old, had never done anything wrong, he would not agree to the visa applicant coming and overstaying, and the visa applicant had no intention of doing so. He said that if the visa applicant liked it here, she would return to Uruguay before her Visitor visa expired and go through the proper channels to migrate. He said the visa applicant and her son would not stay illegally under any circumstances or jeopardise any future visa application by doing so. He said the visa applicant applied to visit for 12 months as that was an option (in the visa application form) and this provided flexibility, for example, the visa applicant could return to Uruguay after a few months if she wanted to or stay up to 12 months.

13. I accept, on the basis of the review applicant’s evidence, that he and the visa applicant are de facto partners.[8] As the visa applicant seeks the visa for the purposes of visiting her de facto partner for a period of 12 months, it is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

    [8] This finding is made for the purposes of this application and is not binding on any future decision-maker.

14. 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). The visa applicant stated in her visa application that she had not previously visited or applied for a visa to Australia. The Department’s movement records database confirms she has not previously entered Australia. Thus, this consideration does not arise in this case.

15. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject and all other relevant matters: cl.600.211(b) and cl.600.211(c). The conditions to which a visa in the circumstances of this case would be subject are 8101 (must not work in Australia) and 8201 (must not engage in study or training in Australia for more than 3 months): cl.600.611(3).

16. I note that the visa applicant is not employed in Uruguay. However, I accept the review applicant’s testimony that he is employed and will financially support the visa applicant during her visit. I am thus satisfied that the visa applicant will not work in Australia. There is no evidence before me to suggest that the visa applicant has any intention of undertaking study or training in Australia at all let alone for more than 3 months. Thus, I am satisfied that the visa applicant will abide by the conditions of this visa if granted. Further, it is credible given the length and nature of the relationship between the review applicant and visa applicant, the length of time they have been apart physically, and the fact the visa applicant is a mature woman who has lived her whole life in Uruguay and never been to Australia, that she would wish to visit the review applicant here and before deciding whether she would apply to migrate on the basis of their relationship. I am satisfied that at the time of my decision the visa applicant does not have an intention to remain in Australia permanently and that if she subsequently decided that she did wish to reside here permanently with the review applicant she would return to Uruguay within the permitted period of stay for the Visitor visa and then apply for an appropriate visa.

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

    DECISION

18. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Mila Foster
    Member