Kokavesis (Migration)

[2019] AATA 2348

Kokavesis (Migration) [2019] AATA 2348 (17 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Anabelle Kokavesis

VISA APPLICANT:  Mr Saniel Porquiado

CASE NUMBER:  1808486

HOME AFFAIRS REFERENCE(S):           02014451 CLF2018/39970

MEMBER:Margie Bourke

DATE:17 June 2019

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 17 June 2019 at 10:56am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – intention to comply with visa conditions – employment and personal circumstances – commitment and connection to wife in home country – length of planned visit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338
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 1 March 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 26 February 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 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 the visa applicant intends to stay temporarily in Australia as a visitor.

5. The review applicant appeared before the Tribunal via video link on 13 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cebuano and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

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

9. 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)).

10. There is no evidence that the visa applicant has travelled to Australia before, or ever held a substantive or bridging visa in Australia.  There is no evidence in relation to compliance with previous held visas.

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.600.611(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.

12. The visa applicant and his wife had both applied for visitors under the tourist stream and both their applications had been refused by the Department. Pursuant to s.338(7) the review applicant did not have standing to sponsor her sister-in-law, and applications for review of applications for visitor visas in the tourist stream cannot be made in combined applications for review. Therefore the visa applicant’s wife did not have a valid review before the tribunal. Only the visa applicant had a review.   This was relevant because the delegate had found the visa applicant did not intend to visit Australia temporarily.  The review applicant stated that the visa applicant intended to visit her for less than the nominated three months; maybe for one month.  The visa applicant stated that he may come for a few weeks if his sister wished it, but that he would prefer not to travel for the visit at all without his wife. The review applicant stated that if the intended visit was too short, (less than two weeks), it may not be worth the cost of the flights.

13. I give weight to the evidence of the visa applicant that he did not wish to travel without his wife as evidence that the visa applicant intends to visit Australia temporarily (if at all).  I give weight to the evidence of both the review applicant and the visa applicant that the planned visit was short, as evidence that the visa applicant intends to stay in Australia temporarily.  I am satisfied that the review applicant has travelled back to the Philippines since she migrated to Australia in 2016, but that she wanted to show her new life and Tasmania to her brother.  I am satisfied that the review applicant and her husband offered the trip (and to cover the expenses) to the visa applicant and his wife.  I accept the evidence of the visa applicant and the review applicant, and find the visa applicant genuinely intends to stay temporarily in Australia.

14. I accept that the visa applicant was elected as a councillor to Baringay Council in 2018, and receives a salary for his position.  I am satisfied that the visa applicant and his wife have a small frozen food business. I am satisfied that the visa applicant owns and manages a piece of land, and also his parents’ property where he now lives.

15. I am satisfied that the visa applicant and his wife financially and emotionally support one of his wife’s nephew, which includes some of his daily care and his education.

16. I am satisfied that the visa applicant has two surviving siblings and one deceased sister.  I accept one sibling is the review applicant and he has an older brother who lives in the Philippines. I accept the visa applicant and his wife cared for his parents until their deaths. This is the reason the visa applicant resides in his parents’ house.  This is also the reason the review applicant wished to give them the holiday to Australia – a token of her appreciation for the care for their parents over many years.

17. I am satisfied based on the evidence before me that the visa applicant does not intend to work, study or train in Australia. I am satisfied that if the visa applicant travels to Australia, he intends to return to the Philippines because of his commitment and connection to his wife, his family including his wife’s nephew, his councillor role, his parents’ home, his own property, and his business.

18. The delegate recorded in the decision record dated 1March 2018 (a copy of which was provided to the tribunal by the review applicant), that he put little weight on the visa applicant’s employment and personal circumstances as evidence that he intends to temporarily stay in Australia as a visitor. I take a different approach.  I have considered the visa applicant’s employment, councillor position and personal circumstances, and I do give them weight as evidence that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

19. I am satisfied, based on the evidence at the hearing that the visa applicant intends to comply with the conditions to which the visa may be subject.

20. The Tribunal has also considered all other relevant matters (cl.600.211(c)). I have considered and accept that the review applicant stated that she understood that if there was non-compliance with conditions of the visa, she would be unlikely to be able to successfully sponsor family members to visit her in Australia in the future.

21. 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

22. 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.

    Margie Bourke
    Member