Haunga (Migration)

[2018] AATA 2935

Haunga (Migration) [2018] AATA 2935 (27 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sione Vailea Haunga

VISA APPLICANT:  Miss Fefolauaki Holo He Lotu Haunga

CASE NUMBER:  1724036

DIBP REFERENCE(S):  60045429 CLF2017/70992

MEMBER:Adrienne Millbank

DATE:27 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 27 June 2018 at 3:39pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visa) – Tourist stream – Visiting adoptive family members – Genuine intention to stay temporarily – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221

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 Immigration on 19 September 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant (the applicant) was born in 1998 in Tonga, and at the time of decision is 20 years old and a second-year student at the University of the South Pacific, Laucala campus, Suva, in Fiji. She applied for the visa on 19 September 2017, seeking a visa of up to three months, with an intended visit from 15 November 2017 – 26 January 2018, for the stated purpose of visiting her adoptive family — her parents, five siblings and their children, who are Australian citizens. At the time of decision, she stated that she intended to come for three months, from November 2018 to February 2019, during the end-of-year university break.  

3. The applicant was adopted in Tonga by the review applicant and his wife shortly after her birth in 1998. The applicant’s mother, who was a friend and fellow Church congregate of the review applicant’s family, died, and the visa applicant’s biological father is unknown. The review applicant advised at hearing that  two applications to bring the applicant to Australia as a dependent child were refused, on the basis that neither of the adoptive parents had lived for a sufficient amount of time with the applicant.

4. The applicant applied for a Visitor (Class FA) visa on 9 May 2017, and the application was refused on 16 May 2017.

5. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with five streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

6. 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.

7. The Delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. No additional evidence was provided that satisfied the Delegate that the visa applicant’s personal circumstances had significantly changed since the refusal of the application lodged in May 2017.

8. The review applicant appeared before the Tribunal on 21 June 2018 to give evidence and present arguments. At hearing the review applicant asked if his support person, a Minister at his Church in Brisbane who assisted the family with the application, could speak on his behalf. The Tribunal agreed with his request, but directed questions to the review applicant, and ensured that he understood and agreed with the responses that were provided on his behalf.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

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

    Compliance with visa conditions

12. The visa applicant has not previously entered Australia. As noted, earlier applications for Child Migrant visas were refused, and an application lodged in May 2017 for a Visitor visa was also refused.

13. The review applicant advised that the visa applicant travelled from Tonga to Fiji in early 2017, and has since resided in Fiji during term time on a ‘study visa’. He confirmed that she has travelled to no other country. The visa applicant attends the University of the South Pacific, Laucala Suva campus.

14. 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.

15. The applicant indicated on her application form that she did not intend to do a course of study while in Australia on a Visitor visa, and there is no information or evidence before the Tribunal that suggests that she intends to work and to engage in study or training during the three months, during the end-of-year university break, of an intended Visitor visa. The Tribunal therefore considers that the applicant intends to comply with conditions 8101 and 8201.

    All other relevant matters

16. The Tribunal has also considered all other matters relevant to the visa applicant’s claim to genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted (cl.600.211(c)).

17. Regarding incentives to return to Tonga or Fiji following her visit, the review applicant confirmed that the reason the visa applicant would return following her visit remained that she is strongly motivated to pursue her studies. The Tribunal asked the review applicant what had changed in the circumstances of the visa applicant since May 2017, when she lodged her previous Visitor visa application. He argued that she is now more embedded and committed to these studies. He explained that she has an ambition to become a medical doctor; that she did well in her first year of science subjects; and that she needs to do well again this year in order to gain entry into medical school. He stated that the University of the South Pacific has a medical school in Suva, at a different campus.

18. The Tribunal referred the review applicant’s attention to the written submission provided by the review applicant’s support person, dated 14 June 2018, where he stated that the visa applicant ‘wants to have a bright and good education’. The Tribunal asked whether the visa applicant had considered studying in Australia. The review applicant responded that she has investigated university courses and possible medical schools in Brisbane, including at the University of Queensland. When asked whether the applicant had considered applying for a Student visa, he stated that she is awaiting the outcome of the Visitor visa application before deciding on future visa applications. When asked what the applicant’s future plans were, and where she wanted to practice medicine, he responded ‘in Australia or Fiji or Tonga, wherever the opportunities are’. The review applicant’s support person, as a sworn witness, pointed out that there is a shortage of doctors in Australia.

19. The review applicant claimed that the visa applicant has never had any paid employment, even casual or part-time, during her school and university years. He advised that when in Tonga she lives with his sister, and when in Fiji she stays with cousins of his wife, her adoptive mother. He stated that when in Australia she would stay with him and his wife, and that they would cover all the costs of her visit, including her travel costs. He stated that he and his wife are finding it a financial strain to support the applicant in her studies in Fiji.

20. The review applicant provided a copy of a petition with the signature of 26 family members and fellow Church congregants, supporting the visa application for the ‘compassionate and compelling reason’ of visiting her parents. The review applicant stated at hearing, and his international movement records confirm, that he and his wife have travelled to Tonga every year to spend time with the applicant and other family members.

21. The Tribunal pointed out to the review applicant that a letter of support provided by the Secretary of the Church in Brisbane where the review applicant and his wife are long-term congregants, appeared to have been written on the understanding that the applicant is seeking to migrate to Australia permanently, as a dependent child. The review applicant acknowledged, on the basis of the contents of the letter, that the Secretary was under the impression that he and his wife are seeking for his adoptive daughter to join them to live in Australia. He confirmed that the visa applicant’s intentions at this stage are to visit from November to February; to consider further options at a later date, and to consider further options if the application is refused.

22. The visa applicant’s adoptive parents and her five adoptive siblings and their 15 children are all Australian citizens, living in Australia. According to the submission provided by the support person, the applicant misses her family here in Australia. The review applicant stated that the visa applicant has no partner or boyfriend in Fiji or Tonga; that she is ambitious and has concentrated on her studies. The Tribunal accepts that the visa applicant is invested in her studies at the University of South Pacific, but notes that the review applicant has acknowledged that the visa applicant has ambitions to study and live in Australia, and that she is awaiting the outcome of the Visitor visa application before determining which further visas to apply for.

23. The Tribunal accept that the applicant’s studies would encourage her to return to Fiji and Tonga. The Tribunal however considers this encouragement is outweighed by her personal circumstances that would encourage her to remain in Australia beyond the expiry of her visa.

24. The Tribunal notes that the review applicant stated that he is struggling financially to support the visa applicant in her overseas studies, and considers this a further incentive for the applicant to remain in Australia beyond the expiry of a Visitor visa.

25. The Tribunal has weighed the personal circumstances that would encourage the applicant to return to Fiji and Tonga against her incentives to remain in Australia, and finds that her incentives to remain outweigh her personal circumstances that would encourage her to return before the expiry of a Visitor visa.

26. 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

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

    Adrienne Millbank
    Member