Gumba (Migration)

[2022] AATA 5009

Gumba (Migration) [2022] AATA 5009 (16 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr J Vincent Daanton Gumba

VISA APPLICANT:  Ms Mary Ann Daanton Gumba

CASE NUMBER:  2216579

HOME AFFAIRS REFERENCE(S):          BCC2022/4145463

MEMBER:Nathan Goetz

DATE:16 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa and directs that the visa applicant satisfies cl 600.232 of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 16 December 2022 at 9:52am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – decision made without hearing necessary – sponsorship by family member – delegate not satisfied that sponsor and applicant are siblings – birth certificates provided to tribunal – slight difference in spelling of father’s name – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 600.232(2)(a)

statement of decision and reasons

application for review

1. This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (‘the Act’) by a delegate of the Minister refusing to grant the visa applicant a Visitor (Class FA) Subclass 600 visa.

2. The review applicant was not represented in the review application.

   BACKGROUND

3. The visa applicant identifies as 46-year-old female citizen of the Philippines presently located outside of Australia.

4. On 3 October 2022 the visa applicant applied for the visitor visa. On 26 October 2022 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl 600.232 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

5. The review applicant identifies as a 58-year-old male citizen of Australia and identifies as a sibling of the visa applicant.

6. On 11 November 2022 the review applicant applied to the Tribunal for review of the decision to refuse to grant the visitor visa.

7. Section 360(1) of the Act requires the Tribunal to invite the review applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. However, this obligation does not arise if the Tribunal considers that it should decide the review in the review applicant’s favour on the basis of the material it has: s 360(2)(a) of the Act.

8. After considering the material the review applicant provided to the Tribunal when he lodged the review application (which was not provided to the delegate), the Tribunal has determined that the correct decision is to set aside the decision of the delegate, which is a decision favourable to the review applicant. Accordingly, the Tribunal did not invite the review applicant to a Tribunal hearing because it was able to make a decision favourable to the applicant.

   CRITERIA FOR THE VISA

9. The visa applicant applied for a visitor visa in the sponsored family stream. As she applied for this stream of the visitor visa, she was required to meet the requirements of cl 600.23 of Schedule 2 to the Regulations. Relevant to this review, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 600.232. This is detailed below:

   600.232 

   (1)       One of subclauses (2) to (4) applies.

   (2)The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and:

   (a)  a relative of the applicant; or

   (b)  a relative of another applicant who is a member of the family unit of the applicant; or

   (c)  a relative of another applicant in relation to whom the applicant is a member of the family unit.

   (3)The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who:

   (a)  is a member of the Commonwealth Parliament or a State Parliament; or

   (b)  is a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory; or

   (c)  holds the office of mayor.

   (4)The applicant is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.

   CONSIDERATION AND FINDINGS

   Visitor visa application form

10. In the visa application form, the visa applicant identified that she was born in Toledo city, Cebu province, Philippines and presently resides in that country. She is unmarried and unemployed, with her last employment ceasing in October 2012.

11. In the form she detailed that the purpose of her travel to Australia was ‘tourism/family visit.’ She detailed that she needed to be in Australia by 30 November 2022 in order to be able to spend the holidays with her aunts in Melbourne.

12. She lodged the visitor visa application as part of a group of applications. She detailed that she would be travelling to Australia with her 82-year-old mother, Susana Gumba, who also resides in the Philippines. Immigration records demonstrate that the visa applicant’s mother was granted the visitor visa on 26 October 2022 and arrived in Australia on 7 December 2022, where she remains to date. That visitor visa is valid until 7 December 2023.

13. The visa applicant detailed that she had family members who would not be travelling with her. These family members were siblings Jimmy Anthony Gumba, Jimmy Frances Daanton Gumba, Jimmy Christopher Gumba, Mary Osmena, and Ma Concepcion Bernaldez. It was indicated that all these siblings were not in Australia.

14. She indicated that in Australia she had an uncle Elmo Anggo, and a brother J Vincent Daanton Gumba. She indicated that both of these relatives were Australian citizens. She nominated her brother in Australia, who is the review applicant, as her sponsor.

    Delegate decision

15. The delegate decision records that the delegate was not satisfied that J Vincent Daanton Gumba was the applicant’s sibling. This was because the delegate was not satisfied that ‘the statutory declarations or family photos are sufficient evidence of relationship in order for the sponsorship to be approved.’ The Tribunal observes that no statutory declaration or family photos were submitted by the visa applicant in the visitor visa application form.

16. The delegate decision records that ‘relationship documents are required to be government issued.’ No ‘government issued’ documents were submitted by the visa applicant to demonstrate her relationship to the sponsor.

17. Accordingly, the delegate was not satisfied that the applicant met cl 600.232 because the delegate was not satisfied that the sponsor was a relative of the visa applicant.

18. Although not specifically detailed by the delegate, it is clear that the delegate was not satisfied that the visa applicant was sponsored by a member of the Commonwealth parliament, a State parliament, or a member of the parliaments of the Australian Capital Territory or Northern Territory, a person who holds the office of Mayor, or a Commonwealth or Territory government agency or instrumentality as no evidence was provided by the visa applicant to support such a finding.

    Review application

19. When the review applicant applied to the Tribunal for review of the decision to review the decision, several documents were provided to the Tribunal. Relevant to the Tribunal’s decision, the review applicant provided the following documents:

    ·     A Republic of the Philippines Certificate of Live Birth dated March 1976 detailing that the visa applicant, Mary Ann Daanton Gumba was born on 20 May 1976 to Jamie Ricafort Gumba and Susana Daanton.

    ·     A Republic of the Philippines Certificate of Live Birth dated May 1962 detailing that the review applicant, J Vincent Daanton Gumba was born on 28 May 1961 to Jimmy Ricafort Gumba and Susana Daanton.

20. The Tribunal is prepared to accept that Jamie and Jimmy Gumba are the same people, as slight variations in spelling or use of diminutive names are not uncommon in official documents. Therefore, it is clear that the visa applicant and the review applicant are brother and sister.

21. The review applicant’s Certificate of Live Birth indicates that he is over 18 years of age. The Tribunal is satisfied that is correct.

22. The review applicant’s Immigration records demonstrate that he holds Australian citizenship granted on 15 July 2014. This is consistent with the claim made about the review applicant’s citizenship status in the visitor visa application form. The Tribunal is satisfied that the review applicant has been ‘lawfully resident in Australia for a reasonable period’ as defined for the purpose of being ‘settled’ per Division 1.2 of Part 1 of the Regulations.

    CONCLUSION

23. The Tribunal is satisfied that the visa applicant is sponsored by a settled Australian citizen who is over 18 years of age and is a relative of the visa applicant. The visa applicant therefore satisfies cl 600.232(2)(a). As the visa applicant is required to satisfy one of the subclauses (2) to (4) of cl 600.232, she therefore satisfies cl 600.232.

24. The proper course is to set aside the decision refusing to grant the visitor visa and direct that the visa applicant satisfies cl 600.232. The delegate will then need to consider whether the visa applicant satisfies the remaining criteria for the grant of the visitor visa in the sponsored family stream.

    decision

25. The Tribunal sets aside the decision to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa and directs that the visa applicant satisfies cl 600.232 of Schedule 2 to the Migration Regulations 1994 (Cth).

    Nathan Goetz

    Member