Holden (Migration)

[2021] AATA 413

Holden (Migration) [2021] AATA 413 (12 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Francis Murgon Holden

VISA APPLICANT:  Mrs Marilyn Mendoza

CASE NUMBER:  2003072

HOME AFFAIRS REFERENCE(S):          BCC2019/6768917

MEMBER:Justine Clarke

DATE:12 February 2021

PLACE OF DECISION:  Melbourne

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.

Statement made on 12 February 2021 at 5:48pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – review applicant’s capacity to participate in Tribunal’s hearing – genuine temporary entrant – past compliance with visa conditions – overstayed the term of most recent Visitor visa by 20 days – intention to comply with visa conditions – incentives to return to home country – visa applicant’s marriage to the review applicant – credible oral evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 Immigration on 7 February 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. On 19 December 2019, the visa applicant applied for the visa. At the time of this decision, the visa applicant is a 44-year-old national of the Philippines.

3. At the time the application for the visa was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. The visa applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

4. 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.

5. On 26 October 2019, that is, prior to applying for the visa, the visa applicant married the review applicant. At the time of this decision, the review applicant is an 85-year-old Australian citizen.

6. The review applicant provided the Tribunal with a copy of the delegate’s refusal decision. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa could be granted.

7. On 9 July 2018, the review applicant applied to the Tribunal for review of the decision to refuse the visa applicant the visa. The review applicant has been unrepresented in this review.

8. On 16 November 2020, the Tribunal wrote to the review applicant as Tribunal staff had noted that the review applicant had experienced some difficulties during telephone conversations and medical evidence had been submitted that the review applicant was diagnosed with emphysema, significant deafness and memory loss. Accordingly, the Tribunal was concerned about the review applicant’s capacity to attend a Tribunal hearing conducted by telephone or video. The Tribunal invited the review applicant to provide a report from his general practitioner addressing the question of the review applicant’s capacity to hear, comprehend and respond to basic questions at a Tribunal hearing conducted by telephone or video.

9. The Tribunal also invited the review applicant to provide:

   ·     Updated information about the visa applicant’s employment and financial situation in her home country.

   ·     Any information relevant to the visa applicant’s activities, commitments or relationships in her home country that would encourage her to return at the end of the proposed visit.

   ·     Any information concerning any other travel by the visa applicant outside her present country of residence.

10. The Tribunal requested that the information be provided by 30 November 2020.

11. On 25 and 26 November 2020, the review applicant submitted written submissions and further evidence.

12. The Tribunal considered the evidence before it and determined that this was a matter where it would be appropriate to invite the visa applicant to give information orally to the Tribunal at a telephone interview, pursuant to s.359(2). On 4 February 2020, the Tribunal invited the visa applicant to attend a telephone interview and, on 5 February 2020, the visa applicant informed the Tribunal that she had accepted the invitation to the interview. On 12 February 2020, the visa applicant attended a telephone interview and gave her evidence pursuant to an affirmation.

13. In view of all the evidence before it, the Tribunal considers that it should decide the review in the visa applicant’s favour based on the material before it, pursuant to s.360(2)(a) of the Act.

14. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    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. The visa applicant seeks the visa for the purposes of visiting the review applicant (her spouse) and to provide care to him. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

17. In assessing the issues, the Tribunal has had regard to all documents on the Department’s file and the Tribunal’s file.

    Clause 600.211(a)

18. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the intended 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).

19. The visa applicant’s movement records, which are on the Tribunal’s file, evidence her as having travelled to Australia as the holder of a Visitor visa previously.

20. Her first Visitor visa was granted on 24 January 2018 and permitted multiple entries. The visa was subject to mandatory conditions 8101 (must not work in Australia) and 8201 (must not engage, for more than 3 months, in any studies or training). The visa applicant first entered Australia on 16 October 2018 and departed on 15 January 2019. She then re-entered Australia on 24 January 2019 and departed on 16 April 2019. At the interview, the visa applicant told the Tribunal that this history was correct and that she had complied with the conditions of her visa. There is no evidence before the Tribunal that the visa applicant did not comply with the mandatory conditions. The Tribunal gives weight to this evidence.

21. On 8 July 2019, the visa applicant was granted another Visitor visa. It also permitted multiple entries and was subject to mandatory conditions 8101 and 8201. The visa applicant entered Australia on 6 August 2019 but did not depart until 26 November 2019, which was 20 days after the visa ceased on 6 November 2019. Again, at the interview, the visa applicant told the Tribunal that this history was correct and that she had complied with the conditions of her visa.

22. In her signed statement of 16 December 2019, which was also before the delegate, the visa applicant explained:

    This year I renewed my Visa and got married with my long time partner Francis last 26 October 2019 at Australia. I went for vacation last 27 November and had my flight scheduled 15 of December for the second time under my renewed Tourist Visa but unfortunately when I was about to aboard, the immigration hold and told me that my Visa was already invalid for some reason the immigration personnel cannot explain. She required me to go at the Australian Embassy and inquire on what happened with my Visa. The only thing I was reminded with my entry last 6 August to 4 November 2019 was when Cebu Pacific changed my flight schedule indicating I have 30 days free rebooking. That is why my flight was rebooked last 27 November due to some emergency after my Husband accidentally hit his head (as shown in the attached photo) that pushed me to rebook my ticket unaware that it would sent me to overstayed. I was not aware of it because the Airlines changed my flight schedule.

23. The visa applicant also gave oral evidence about these events at the telephone interview, saying that she had made a ‘big mistake’.

24. The Tribunal must consider whether the visa applicant’s non-compliance with the term of her most recent Visitor visa demonstrates a disregard for Australia’s immigration law and a propensity to seek to remain permanently in Australia following arrival, regardless of the type of visa used for entry.

25. The Tribunal has reviewed and considered the evidence, including the photograph corroborating the claimed head injury to the review applicant (also before the delegate), and finds that the visa applicant’s previous non-compliance with the term of her visa in late 2019 was due to her concern for the review applicant’s health and her paying greater attention to the changes allowed by the airline than to the term of the visa. The Tribunal does not condone such behaviour. At the interview, the visa applicant gave oral evidence that she had applied for the visa herself, without the assistance of an agent. She acknowledged that it was essential for her to know the term of any visa granted to her. The Tribunal considers that there is insufficient evidence to support a finding that the visa applicant deliberately disregarded Australia’s immigration law and that she has a propensity to seek to remain permanently in Australia following arrival, regardless of the type of visa used for entry. To the contrary, the visa applicant impressed the Tribunal as a credible person.

26. In contrast to the delegate, the Tribunal gives greater weight to the evidence of the visa applicant’s first and second trips to Australia and her compliance with Australian immigration law on those occasions than it does to her having overstayed the term of her most recent Visitor visa by 20 days.

27. The visa applicant gave oral evidence that she had lived in Singapore for four years as an ‘overseas worker’. She said that she had finished two different contracts there (each for two years and with different employers). She said that she had complied with all conditions required of the Singaporean government with respect to her visa/s.

28. Overall, the Tribunal considers that the evidence pertaining to cl.600.211(a) weighs in favour of the claim that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of the visitor visa.

    Clause 600.211(b)

29. 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).

30. 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 three months;

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

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

31. The Tribunal discussed each of these conditions with the visa applicant at the telephone interview. The visa applicant gave oral evidence that she would comply with all visa conditions. With respect to the discussion of condition 8531, along with telling the Tribunal that she would comply, she said, ‘I know my mistake’. While the visa applicant’s previous behaviour in overstaying her last Visitor visa by 20 days could be said to evidence an intention not to abide by condition 8531, the Tribunal does not take this view. First, the Tribunal notes that neither of the visa applicant’s previous visas were subject to condition 8531. Second, the fact that the visa applicant married the review applicant during her last visit to Australia, but nevertheless departed Australia suggests that she does not seek to remain permanently in Australia. The Tribunal considers that it has no reason to doubt the veracity of the visa applicant’s oral evidence. Accordingly, the Tribunal accepts her oral evidence.

32. Similar to the consideration of cl.600.211(a), the Tribunal considers that the evidence pertaining to cl.600.211(b) weighs in favour of the claim that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of the visitor visa.

    Clause 600.211(c)

33. The Tribunal has also considered all other relevant matters, pursuant to cl.600.211(c).

34. In the primary decision, the delegate noted that the visa applicant has her parents, two siblings, her son and grandchild who would remain in the Philippines for the duration of the visa applicant’s proposed visit to Australia but notwithstanding, the delegate expressed the view that the visa applicant had not provided sufficient evidence of her personal, cultural and family ties that would act as an incentive for the visa applicant to return to the Philippines at the end of the proposed visit. Further, the delegate remarked that the visa applicant had provided no evidence of the scope or scale of her small business and very little evidence to show that the business is ongoing or sufficiently profitable to act as an incentive for her to return to the Philippines. The delegate also expressed concern that the visa applicant was self-employed and thus would not receive any remuneration when visiting Australia. Accordingly, the delegate was not satisfied that the visa applicant’s business circumstances would encourage her to depart Australia at the end of the proposed period.  

35. At the interview, the Tribunal asked the visa applicant questions to ascertain the factors that would act as an incentive for her to remain in Australia after the proposed stay and those factors that would act as an incentive for her to return to the Philippines.

36. With respect to factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay, the Tribunal notes that the visa applicant has some family members in Australia, notably the review applicant, his daughter and grandchildren. The Tribunal notes that the delegate considered that the visa applicant’s marriage to an Australian citizen evidenced her intention to reside permanently in Australia. However, having had the advantage of hearing the visa applicant’s oral evidence, the Tribunal takes a different view to the delegate.

37. The visa applicant told the Tribunal that she had been in a partner relationship with the review applicant since 2012. The Tribunal notes that there is some corroborating evidence. For example, the review applicant’s daughter, Colinda Holden, stated in her signed statement of 8 April 2019 that the review applicant and the visa applicant had been in a relationship since 2012. The visa applicant told the Tribunal that she and the review applicant had been advised that she could not apply for a Partner visa because the review applicant had previously sponsored his ex-wife, who was another Filipino woman.

38. The visa applicant said that she was content for her and the review applicant to live in different countries so long as they could see one another. She said that, earlier, the review applicant would travel to the Philippines twice a year and stay two to three weeks each time. She explained that they had stayed at a property together in the Philippines, including renting one and staying with her parents. However, due to the review applicant’s health issues, the visa applicant had encouraged him to return and remain in Australia rather than travelling to the Philippines. She explained that this was because the review applicant had Medicare and could access hospitals in Australia where everything was provided. She said that hospitals were very expensive in the Philippines. She said that she had been very happy when her previous Visitor visas were granted because it meant that she could see the review applicant and care for him. She said that the current period was the longest time that they had not seen one another. She explained that she had been distressed when the review applicant had suffered a heart attack on her birthday and been admitted to hospital in Australia on three occasions and she had not been able to see him. It appeared to the Tribunal that the visa applicant was crying when giving some of this oral evidence.

39. The delegate did not raise country information as a concern in the primary decision and no specific country information was discussed with the visa applicant at the interview, although there was a general discussion of the effect of the COVID-19 pandemic on the visa applicant’s life in the Philippines.

40. At the hearing, the visa applicant gave credible oral evidence about a number of her personal circumstances which would encourage her to return to the Philippines at the end of the proposed stay. The visa applicant told the Tribunal that her parents, her son (19 years of age) and her granddaughter (three years of age) all lived in the Philippines, along with her brother and her sister and their families. She told the Tribunal that she and her son were living with her parents in the family home. She explained that her siblings did not live in the same town. She said that during the pandemic in 2020, it had been very difficult for her brother to visit their parents because he lived so far away. She told the Tribunal that her granddaughter lived with the child’s mother so the visa applicant did not get to see her as often as she would like (saying that she would happily see her every day).

41. The visa applicant told the Tribunal about her small business; she is the owner of two food carts which sell Hong Kong-style noodles. She told the Tribunal that she had been granted a permit for use of the cart/s for the period 2016–21. The Tribunal notes that corroborating documentary evidence was provided. She told the Tribunal that, prior to the pandemic, she had earned around 10,000–15,000 Philippine pesos per month. She explained that this was a modest income, only permitting her to cover daily expenses, including food and power bills. She said that it was enough money for her to live on as she did not need much. She said that she earns extra income from selling items on Facebook, saying that she could earn around 5,000 Philippine pesos per month which was enough to pay for wi-fi for two months. She said that, in 2020, due to the pandemic, she had been unable to undertake her work with the food carts. She said that she had had to close her business until December 2020 and that, at present, only one cart was in operation. She said that, at present, she was not earning her previous income of 10,000–15,000 Philippine pesos per month. She said that she operates the cart from lunchtime until midnight and she said that she had trained her son to be able to run the business for a period of time when she might be in Australia. She also explained that she had been saving money to pay for her son to obtain a motorbike licence, with the plan that he could use her father’s motorbike to meet online order deliveries. She explained that, due to the pandemic, the cost of obtaining a motorbike licence had increased. She told the Tribunal that income from both of her jobs—the food carts and the sales via Facebook—had been affected by the pandemic. She said that her parents had a small store and that they had helped her and her son. She said that her son did not have another job as the Philippines does not permit people to apply for jobs until 18 or 19 years of age.   

1. The Tribunal asked the visa applicant whether her husband sends her any money and she replied that, during the pandemic, she had not wanted him to send money, preferring that he spend money on his own medication, so she had not asked for any financial assistance. She said that she and her son lived with her parents, so their basic needs had been met.   

2. With respect to assets, she explained that she owned the two food trucks. While she had owned a property where she had lived with her husband (documentary evidence was submitted of the contract where she purchased the property in Margot Angeles City, Pampanga), she had sold it in 2019 because her husband had been too unwell to continue to visit the Philippines. She said that the proceeds of the sale were used to fund her air tickets to visit her husband.

3. The Tribunal discussed the ownership of the family home with the visa applicant at the interview. She said that her parents had said that she was welcome to live with them for as long as she wished. She said that there had been no discussion as to how ownership in the property would be divided among her and her two siblings upon the death of the parents.

4. After considering all the evidence before it, on balance the Tribunal considers that the presence of the visa applicant’s ageing parents, son and granddaughter in the Philippines, along with her ownership of the food carts, which is the main source of her income, form a slightly stronger incentive for her to return to the Philippines than the incentive for her to remain in Australia with the review applicant. The Tribunal appreciates the delegate’s concerns but having had the benefit of hearing the visa applicant’s oral evidence, the Tribunal found her to be very credible, particularly when she told the Tribunal that she wanted to be able to visit her husband in Australia and that if this was possible, she was content with them living apart. Overall, having regard to the specific circumstances of the case, the Tribunal does not share the delegate’s concerns. The Tribunal considers that the evidence pertaining to cl.600.211(c) weighs in favour of the claim that the visa applicant genuinely intends to stay temporarily in Australia for the purpose of the visitor visa.

   CONCLUSION

5. 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

6. 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.

   Justine Clarke
   Member