Hodgkins (Migration)

[2020] AATA 5978

Hodgkins (Migration) [2020] AATA 5978 (13 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Edita Obeda Hodgkins

VISA APPLICANT:  Mr Jose Jr Obida Teopiz

CASE NUMBER:  1821035

HOME AFFAIRS REFERENCE(S):          01200756 CLF2018/180874

MEMBER:Luke Hardy

DATE:13 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations;

and with the direction that the visa applicant meets PIC 4011 for the purposes of the relevant subclause of Schedule 2 to the Regulations.

Statement made on 13 November 2020 at 1:33pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – PIC 4011 “risk factor” – past compliance – genuine intention to stay temporarily –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 14 June 2018 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 applied for the visa on 5 June 2018. 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 Sponsored Family stream.

3. 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he had applied for permanent migration to Australia during the period 5 years immediately preceding the application” he lodged on 5 June 2018, attracting consideration against PIC 4011(2)(a). The delegate, having regard to the PIC 4011 “risk factor,” attributed less weight to the other arguably potentially favourable facts and gave more weight to others in this case. Ultimately, the delegate was not satisfied that the visa applicant’s visit would be a temporary one.

5. The review applicant, Ms Hodgkins, appeared before the Tribunal, with her husband and daughter as witnesses, on 13 November 2020 to give evidence and present arguments.

6. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by telephone, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. There was no need for an interpreter. There were no significant audio issues. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. For the following reasons, the Tribunal, constituted by me, has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. 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)).

11. 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.600.612):

    ·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.

12. Relevantly, the visa applicant evidently complied with a visitor visa in 2011 and with a 457 temporary work visa from 2012. Where the “risk factor” came into play for the delegate was when the visa applicant lawfully lodged a migrant visa application in 2017 whilst still on his 457 visa.

13. Ms Hodgkins and her family spoke to this issue at the hearing. I heard from them that the visa applicant did nothing unlawful and was lawfully at the time he lodged his migrant visa application. He had had at the time a legitimate expectation of a favourable outcome. The Australian government around that time changed its skills requirements, leaving many migrant visa applicants without a pathway to a migrant visa. At the time, the visa applicant’s daughter was at school in Australia. The visa applicant complied with his visa under the government’s revised regime and duly departed Australia, taking his daughter with him. She is now in the process of completing her nursing studies in the Philippines. Notwithstanding the PIC 4011(2)(a) “risk factor”, I give some weight to the visa applicant’s past compliance.

14. The delegate gave more weight to the presence of three of the visa applicant’s siblings residing in Australia compared with his wife and daughter residing in the Philippines. I heard from Ms Hodgkins and her family that the visa applicant also has three siblings in the Philippines. I give that fact some weight.

15. The delegate was concerned about having insufficient information about the visa applicant’s business and income situation in the Philippines. Ms Hodgkins and her family provided evidence at the hearing of the visa applicant’s business in renting out commercial stall spaces, and about his income having improved by around 30% during the current Covid-19 pandemic through additional stall rental. The family told me that the visa applicant now earns in excess of 24,000 pesos a month, which is around A$700. The visa applicant’s wife assists him in managing his business. I have given only a little weight to these facts.

16. However, I am satisfied on their assurances that the family in Australia would be able to accommodate and support the visa applicant during a stay of up to three months in Australia and would see him back on a flight to the Philippines before his visa expires.  The family also provided two character references in support of the visa applicant. I have given some weight to all this evidence.

17. Although there has been evidence of unlawful stay by citizens of the Philippines in Australia, the visa applicant has only ever acted lawfully in respect of immigration laws and regulations here. Whereas, he would be permitted, say, to lodge a protection visa application, it is hard to conceive on the evidence what claims he would be able to contrive to make. The facts in this case would be before protection visa decision makers and they would be very unlikely to help him.

18. On balance, having weighed all the relevant evidence before me, I am satisfied that the visa applicant meets cl.600.211(c).

19. I have also considered all other relevant matters (cl.600.211(c)).

20. I find that the visa applicant meets c.600.211.

21. I understand that PIC 4011 is a separate criterion from cl.600.211. It only needs to be addressed if the Tribunal is satisfied that cl.600.211 is met and the delegate also refused the visa on the basis of cl.600.213, which is indeed the case here.

22. Having regard to PIC 4011, I find on the evidence before me that there is very little likelihood that the visa applicant will remain in Australia after the expiry of any period during which he might be authorised to remain after entry.

23. For the above reasons the Tribunal is 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 met.

    DECISION

24. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    and with the direction that the visa applicant meets PIC 4011 for the purposes of the relevant subclause of Schedule 2 to the Regulations.

    Luke Hardy
    Member