Grafos (Migration)

[2021] AATA 4153

Grafos (Migration) [2021] AATA 4153 (24 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sera Grafos

VISA APPLICANT:  Ms Loleini Peta Sili

CASE NUMBER:  2003064

HOME AFFAIRS REFERENCE(S):          CLF2020/57186

MEMBER:Christine Cody

DATE:24 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 24 September 2021 at 12:44pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visiting her Australian citizen mother – review applicant’s desire for the visa applicant to be her carer – overstayed in Australia for 5 years –not satisfied that visa applicant genuinely intends to stay temporarily in Australia – not the purpose of a visitor visa – strong incentive remain in Australia –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 13 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 12 February 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.

   The Department

4. The application form and supporting documents provide the following relevant evidence: The visa applicant, Loleini Peta Sili, is a Tongan national who is aged 48 years. She is also known as Loleini Peta Otukolo. She is separated. She has been employed for the last 3 years as an assistant manager. Her passport was issued in 2018. The application was made because her stepfather Mr Peter Grafos (the husband of her mother, Sera Grafos, the review applicant) had died. She sought to visit Australia for 3 weeks with her daughter, Akanete Arianna Lui, to see her mother, who will pay for all her expenses. Her 2 sons, Ivan Moreno and Siosifa Moreno, and 1 daughter, Naolmi Otukolo, (born in 1994 and 1996 and 1998 respectively), will remain in Tonga.

5. The applicants have family members in Australia: the review applicant’s son Taliauli Mafivaea born 1965 (in Perth) and her daughter Seini Corben (in NSW) born in 1966.

6. In the application form, in response to the question as to whether the visa applicant had an application for entry or further stay in Australia refused, or had a visa cancelled, the visa applicant responded yes. Her explanation was not entirely clear; reference was made to travelling to Australia with a visitor visa and then “extending” her visa; her stepfather was not healthy, so she helped take care of him. She got married but always had a problem with his children so moved back to her mother’s house. She and her daughter returned to Tonga in January 2017 and applied for a carer visa to take care of her stepfather and they are still awaiting the result and they lodged visitor visas, all were “declined”. Accompanying the application form was a bridging visa (BVE) grant notice for the visa applicant and her daughter dated 7 December 2016 which showed the conditions of no work, report as directed, and must notify change of address.

7. Supporting documents include a signed family composition form, a copy of the visa applicant’s birth certificate, a death certificate for the review applicant’s husband showing that he died on 9 February 2020 from sepsis and a chest infection, a funeral booking, a letter from Dr Nicola McRae, emergency consultant, noting that Mr Grafos died unexpectedly and family members would like to urgently travel from overseas. The review applicant’s invitation letter of 9 February 2020 invites her daughter and granddaughter to Australia for the funeral. She will cover all their expenses (she provided a bank statement in the name of the review applicant and her late husband showing a balance of over $10,000, also provided were copies of passport identity pages for the review applicant and her husband).

8. An employment reference from the visa applicant’s manager confirmed that the visa applicant is the assistant manager and has been doing the sewing for the business since 2017. She supports the visa applicant travelling to Australia. The visa applicant is trustworthy, diligent and a hardworking mother, and she trusts that she will return to Tonga.

9. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant intends to stay temporarily in Australia for the purpose for which the visa is granted. The decision was based on the following factors:

   ·The documents provided in relation to the visa applicant’s employment indicate that she was engaged in an activity that attracts relatively low remuneration compared with similar employment in Australia. As such, the delegate was not satisfied that her current employment status provided sufficient incentive for her to return to her home country and/or comply with the conditions of this visa.

   ·Departmental records indicate that the visa applicant had previously remained in Australia beyond the stay period permitted by her last visa, which raises concerns in relation to the likelihood of her complying with the provisions and conditions of the visa for which she has applied.

   ·Generally, offers of support or guarantees given by family and friends in Australia are not sufficient evidence of a genuine temporary stay. The onus is specifically on the visa applicant to satisfy the decision-maker that they intend to only visit Australia.

   ·The delegate’s concerns as to non-compliance with visa conditions and seeking to remain in Australia outweigh the stated purpose of travel and ties to her home country.

10. There are no non-disclosure certificates on the Department file.

    The Tribunal

11. The Tribunal was provided with a copy of the delegate’s notification letter, decision record and a review application form.[1] The review applicant submitted that the delegate’s decision was wrong, and the visa applicant and her daughter will just come for the funeral and will then go back. She is prepared to pay a bond, and provided documents relating to her assets. She provided copies of documents that had been previously provided to the Department, as well as other supporting letters in which she stated that she would like the visa application to be approved, the review applicant is suffering mentally, emotionally and physically due to the loss of her husband, and she is disabled (medical documents were provided showing that the review applicant [has] medical conditions). She receives a disability support pension, she lives alone, and her daughter Mele (who usually resides in Fiji) will leave Australia on 16 March 2020. The review applicant is very concerned for her overall welfare and wellbeing.

    [1] The incorrect version was lodged, and with 2 visa applicants; subsequently an application seeking review of the decision to refuse a visitor visa relating to this visa applicant was lodged.

12. This time, she will not let either the visa applicant or her daughter overstay. She is aware the visa applicant did this before but this was because of the problems she had with her ex-husband; the visa applicant is not going to do the same mistake, and when she overstayed it was not because of the review applicant. When the review applicant found out that the visa applicant and her child Akanete were supposed to go back to Tonga, she and her husband were happy to pay for their airfares and sent them back home. The visa applicant will return because she has a current pending carer visa application and the review applicant wants the visa applicant to care for her.

13. The review applicant appeared before the Tribunal on 22 September 2021 via MS Teams (during the COVID-19 pandemic) to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan language. The review applicant was accompanied by her friend who attended as a support person.[2] The Tribunal was satisfied that the applicants were able to understand the proceedings and give evidence and arguments.

    [2] The Tribunal asked if she was attending as a witness but she said no, just as a support person

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

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

17. 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)).

18. 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;

19. The Tribunal has also considered all other relevant matters (cl 600.211(c)). In doing so, the Tribunal considered, but is not bound by, the Department’s policy guidance contained in its Procedures Advice Manual (PAM3).

20. At hearing, the Tribunal asked the review applicant what the visa applicant’s incentives would be to comply with the visa conditions and return to Tonga. The review applicant said that she will make sure the visa applicant will comply with all the visa conditions. When asked if there was any other incentive for the visa applicant to just visit, and then return to Tonga, she said that she would like the visa applicant to be able to stay and be the review applicant’s carer as her health is not that good and no one can be her carer at the moment. The Tribunal suggested that the review applicant’s evidence indicated that the visa applicant wants to stay in Australia as a carer; the review applicant responded that she could be granted a 3‑month visitor visa, then return to Tonga, then reapply to come back to Australia as a carer.

21. There was some confusion as to whether the visa applicant had previously applied to come to Australia as a carer:

    ·   The review applicant said that initially she and her husband wanted the visa applicant to come to Australia as their carer but then her husband passed away so they applied for a visitor visa for the visa applicant to come to the funeral. The Tribunal asked why the visa applicant had not applied as a carer, if that is what they both want. The review applicant then asked whether she can change the current application to be a carer visa application. The Tribunal said that it was only able to deal with the issue before it but that she should speak to the Department or seek legal or migration advice in relation to the carer issue.

    ·   The visa applicant, however, seemed to think that there was a pending carer visa application. She said she had lodged a carer visa application in 2017 but then her stepfather passed away so then they applied for a visitor visa so that they could come over. The Tribunal asked whether the carer visa was subsequently rejected and she said that there has been no answer to the carer visa application. The Tribunal asked whether she ever made a progress enquiry at the Department and she said they told her to wait so she is still waiting. The Tribunal said it did not have any information about a pending carer visa application and suggested she contact the Department to make enquiries.

22. The review applicant said that she has significant health problems which include [details deleted], and other health issues she is struggling with.[Details deleted]. She has a daughter, Seini Valiki Corben, who lives in NSW, and she will come to the review applicant if she is sick; but her husband is disabled so she is his carer. She has no one else to help her. The Tribunal asked whether the review applicant receives services, and she said that sometimes nurses come but she has to pay for them. When it was put to her that it seems like she wants a carer now, she said “yes please”.

23. The Tribunal put to the review applicant that her desire for the visa applicant to be here as her carer is a concern, as it might mean that the visa applicant might come as a visitor and then seek to remain with the review applicant as a carer. In response she said that she promises that if the visa applicant is allowed to come on a visitor visa, she will make sure she will go home and then she will reapply for a carer visa.

24. Whether or not there is a pending carer visa application, both applicants were consistent in their assertions that the visa applicant will comply with the conditions of a visitor visa, she will go home, and then she will seek to come out as a carer. The Tribunal put to the review applicant that it will weigh the incentives for the visa applicant to stay in Australia and the incentives for her to go back to Tonga after a visit. However, any incentives that the visa applicant has to return to Tonga do not appear particularly strong, as she is willing to leave them to come to Australia as a carer with a long-term visa. In response the review applicant said that the decision-making rests with the Tribunal.

25. The review applicant said that the visa applicant had previously arrived on a visitor visa and had overstayed in Australia for 5 years.[3] She got married here and she said that “we” were surprised when they found out later that she overstayed her visa after the wedding. The visa applicant confirmed that she had lodged a spouse visa application that had been rejected.[4] The Tribunal said to the review applicant that according to her evidence, the visa applicant has already overstayed a visitor visa; this may lead to concerns that she may do so again. The review applicant responded that the visa applicant’s husband was meant to take care of the papers.

    [3] Departmental records confirm this.

    [4] Departmental records confirm this.

26. The review applicant said that prior to the current visitor visa application, the visa applicant had lodged another visitor visa application which had been rejected.[5]

    [5] Departmental records confirm this.

27. The review applicant said that as far as she knows, the visa applicant complied with the conditions of her past visas; for example, she did not work in Australia. As noted above, the review applicant said that the visa applicant will comply with the conditions that would be imposed on a visitor visa.

28. The review applicant told the Tribunal that the visa applicant had some dealings with the police; [details deleted].[6] The Tribunal does not consider this relevant to the issue before it.

    [6] Departmental records indicate that the visa applicant had some involvement with the police.

29. The review applicant said that she is prepared to offer a surety or bond of $5,000. The Tribunal noted that it is unable to impose a bond, but it can take this offer into account. It notes that she had shown bank balances in excess of this amount, and the Tribunal accepts that the review applicant is prepared to lodge a bond.

30. At the end of the hearing, the review applicant thanked the Tribunal and repeated her request that the visa applicant be granted a visitor visa and then when she returns to Tonga she can lodge an application as a carer. The Tribunal put to the review applicant that her evidence may suggest that the visa applicant does not want to come as a visitor and return to Tonga; the evidence suggests that she will want to stay in Australia. In response the review applicant said thank you very much, she would like to lodge an application for her to be a carer right now. The Tribunal suggested again that she seek advice and contact the Department.

31. The Tribunal notes that prior to 2011, the visa applicant had visited Australia and had returned prior to the expiry of her visitor visas. It also notes the assertion that the visa applicant has substantially complied with the conditions of her last substantive visa and subsequent bridging visas when last in Australia, and that she intends to comply with the conditions of a visitor visa if she is granted one. The Tribunal has weighed these assertions against her previous migration history of arriving on a visitor visa in 2011 and then seeking another visa and overstaying in Australia. The review applicant said that both the visa applicant and her daughter had thereafter overstayed for 5 years. The Tribunal accepts that the visa applicant lodged a valid spouse visa application after she arrived in Australia as a visitor on the last occasion.

32. However, as discussed above, the Tribunal considers it difficult to accept the assertions of the review applicant (consistent with those of the visa applicant, and her employer who said she was trustworthy and would return) that in the circumstances of her mother needing and wanting a carer now, if the visa applicant is now granted a visitor visa, she intends to only visit her mother and then return back to Tonga either to lodge a carer visa application or to wait for the result of a carer visa application which she claims she has not enquired about in the last 4 years.

33. The Tribunal has considered the evidence cumulatively, and it is not satisfied that the visa applicant intends to come to visit her mother. It is of the view that there are significant incentives for the visa applicant to remain in Australia with her mother in the role of her carer, but this is not a carer visa application. The Tribunal is not satisfied that, even considering her incentives to return to Tonga (her job, daughter and relatives), and with a bond being offered, and even giving the visa applicant the benefit of the doubt as to past compliance with visa conditions and future intended visa condition compliance (as to work and no study over 3 months), the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which a visitor visa is granted.

34. 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

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

   Christine Cody
   Member