Kawei Titus (Migration)

[2017] AATA 938

Kawei Titus (Migration) [2017] AATA 938 (23 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Louise Ndrineu Kawei Titus

VISA APPLICANT:  Ms Stephanie Evelyn Pindaluh Kiki

CASE NUMBER:  1618901

DIBP REFERENCE(S):  60021212

MEMBER:Lisa Lo Piccolo

DATE:23 May 2017

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 23 May 2017 at 3:43pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Genuine temporary entrant – Stable employment – Immediate family in PNG – Managing family rental properties – Family ties in Australia and PNG – Close communal lifestyle

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, 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 26 September 2016 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 13 September 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 the delegate was not satisfied that the visa applicant genuinely intends to visit Australia temporarily.  A copy of the delegate’s decision was provided to the Tribunal by the review applicant.

5. The review applicant appeared before the Tribunal via telephone link on 16 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Stephanie Evelyn Pindaluh Kiki.   

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

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

3. 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)).

4. There is no evidence before the Tribunal to indicate that the visa applicant has ever previously held an Australian visa.   

5. 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(2)):

   ·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.

6. The Tribunal has considered all of the evidence the visa applicant submitted to the Department as well as the oral evidence of the applicants at the hearing.  The Tribunal has examined afresh the particular circumstances of the visa applicant.  The applicants both told the Tribunal that the visa applicant has a stable job and family in Papua New Guinea (PNG).  She is married to Nathaniel Noan Songan and has three young children aged 6, 8 and 9 years old.  They both gave consistent evidence that she “manages” her parents’ rental properties in PNG.  They both said that her parents and siblings were granted a subclass 457 visa in 2009 and have lived in Australia since then.  She remained in Papua New Guinea with her husband and children.  The visa applicant said that her husband’s also works in PNG and all of their family and friends live there.  They both gave consistent evidence that the visa applicant has a happy life in PNG and just wanted to come to Australia to spent a few weeks with her parents and siblings.  Both said they have not all been together since they migrated to Australia in 2009. 

7. The applicants told the Tribunal that they had applied for visitor visas for the visa applicant’s husband and children as well, but never did receive any visa refusal decision.  The visa applicant said she had been assisted with the application by a lawyer in PNG and she did lodge separate applications for each of her family members.  The Tribunal informed the applicants that the visa applicant’s refusal decision was the only matter the Tribunal was reviewing.  There was no evidence before the Tribunal to indicate otherwise, and the Tribunal informed the applicants that they should contact the Department to check on the progress of these other applications.

8. Despite the lack of documentary evidence, the applicants gave clear consistent evidence regarding the visa applicant’s life in PNG and her proposed travel.  The Tribunal is satisfied that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)).

9. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

10. The Tribunal accepts that the visa applicant’s family ties in Australia provide an incentive for her to remain.  The visa applicant’s  mother and father and two siblings both reside in Australia and she is keen to visit with them in Australia to see where they have made their new life.  She is also keen to spend time with them.  The Tribunal finds these family ties constitute an incentive for the visa applicant to remain in Australia. 

11. The Tribunal also accepts that the visa applicant’s husband and her three children reside in PNG, as does her paternal grandmother, seven paternal aunties and 3 maternal aunties.  The Tribunal accepts that the vast majority of her family and her husband’s live in Lae within close proximity to her.  The Tribunal accepts that they live a close communal lifestyle and that she has dozens of cousins and friends and neighbours with whom she has close bonds of friendship.  The Tribunal finds these family ties constitute an incentive for the visa applicant to remain in Australia.  In so saying, the Tribunal acknowledges that the visa applicant was proposing to visit Australia with her husband and children.  Notwithstanding this, the Tribunal accepts that the visa applicant, her husband and her children have close cultural and family ties which provide a strong incentive for her to return to PNG.

12. The Tribunal also considers the visa applicant’s employment in PNG is an incentive to return to PNG.  The evidence indicates that the visa applicant manages properties owned by her parents in PNG.  The applicants both told the Tribunal that she was entrusted with this responsibility when the family migrated to Australia.  The review applicant told the Tribunal that Tampawi Enterprise is under her and husband’s name but they

    
    

    do not benefit from that company.  She said it is a family run business and the visa applicant is the Administration Manager.  The visa applicant said that these properties provide her family with financial security and she is responsible for issuing invoices, for ensuring that rents are paid, all expenses are met and all maintenance is attended to.  She said that she also manages their cultural family lands.  She said that her involvement in this business is an incentive for her to return to PNG and comply with any visa conditions imposed.   Whilst the Tribunal accepts there is some risk she may seek to overstay her visa, the Tribunal assessed that the visa applicant will comply with the visitor visa conditions and genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

13. 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

1. 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.

Lisa Lo Piccolo
Member