Galarita (Migration)

[2021] AATA 4425

Galarita (Migration) [2021] AATA 4425 (9 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Florencia Galarita

VISA APPLICANT:  Mr Orlando Cabantog SISON

CASE NUMBER:  2002768

HOME AFFAIRS REFERENCE(S):          BCC2020/185669

MEMBER:Mark Bishop

DATE:9 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 09 November 2021 at 11:58am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant and intention to comply with conditions – overstay after last substantive visa ceased – no supporting documentation about circumstances in home country provided – intention to gain permanent residence – possibility of applying for partner visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 11 February 2020 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 27 January 2020. 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.

5. The Review Applicant (RA) appeared before the Tribunal on 9 November 2021 to give evidence and present arguments. The VA did not appear before the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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)).

10. 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)

    ·8101 – must not work in Australia

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

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

11. The delegate made the following findings:

    ·“In this case, I am not satisfied that clause 600.211 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:

    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.

    ·In assessing whether or not the applicant genuinely intends to stay temporarily in Australia, I have taken into account information provided in the application, the applicant's immigration history and compliance with previous visas. I have also taken into consideration any supporting documents as well as the applicant's personal circumstances, commitments, and incentive to return to their country of residence.

    My decision is based on the following factors

    ·I note that no verifiable evidence of employment or any ongoing and cumulative source of income was provided with the application. The applicant has not provided supporting documents that relate to, or describe, their current circumstances in the Philippines in relation to any employment, business, or financial ties. I am therefore unable to be satisfied that there is enough incentive for the applicant to return at the completion of the visit, or that the applicant’s intention is to be a genuine visitor to Australia.

    ·The fact that the applicant is requesting to be absent from their only stated source of income for 3 months in order to visit and holiday also raises concerns over the amount of weight the applicant places on their responsibilities and commitments in the Philippines and therefore raises concerns over the applicant’s intended purpose in coming to Australia.

    ·It should also be noted that while offers of support (including statutory declarations) from Australian friends and relatives are considered, this is only one relevant factor in assessing whether the applicant meets the relevant criteria for Visitor visa grant. Overall, it is the circumstances of the applicant themselves, above all, which must be considered. This office considers carefully the support from Australians, particularly if there is a close family or personal link. Although I am satisfied that the letter of invitation from the applicant’s sponsor in Australia is genuine, I consider that it does not outweigh the applicant’s personal circumstances.

    ·After considering the information provided, I am not satisfied that the applicant's circumstances support his claims that he intends to temporarily stay in Australia as a visitor.

    ·Therefore, I am not satisfied that the applicant meets the relevant criteria in clause 600.211 in Schedule 2 of the Migration Regulations.”

12. In evidence the RA advised the Tribunal as follows:

    ·She is engaged to be married to the VA.

    ·He lived in Australia for 1 year and departed Australia in December 2018 after a period of two months as an unlawful overstay.

    ·The VA works as an egg delivery person using his tricycle in the Philippines. The RA advised the VA leads a simple life.

    ·The VA has 3 adult children. He does not own any assets apart from his home.

    ·He has not returned to Australia since 2018.

    ·The RA has not seen the VA since December 2019. The RA remits to the VA approximately $200 per month on average. The RA advised this was a lrge sum in the Philippines.

    ·The VA has family in the home country.

    ·The RA is an Australian citizen and works as a teacher/director in a school in  Hawker in the Flinders Ranges of SA. She owns an investment property in Murray Bridge and receives income from the tenant of $265 per week. She last visited the Philippines in 2019

    ·The plan of the VA and the RA was for the VA to come to Australia, live with the RA, marry the Ra and seek permanent residence in Australia.

13. The Tribunal raised with the RA the option of applying for a partner visa sometime in the future if the current review application was unsuccessful.

14. The RA made it clear to the Tribunal that the VA wished to achieve permanent residence in Australia and a temporary visa leading to residence and marriage was the current preferred vehicle of choice. The RA advised the Tribunal the VA had been in breach of his last substantive visa in Australia in 2018 when he overstayed for a period of up to 2 months in breach of conditions then attached to his substantive visa.

15. The Tribunal finds the VA is not an “…applicant genuinely intend[ing] to stay temporarily in Australia for the purpose for which the visa is granted…”

16. The Tribunal finds the VA does not meet the criteria set out in cl.600.211 (a) in that the VA did not “comp[y] substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject…”

17. 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

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

    Mark Bishop
    Member