Mape (Migration)

[2018] AATA 2216

Mape (Migration) [2018] AATA 2216 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Karin Mae Mape

VISA APPLICANT:  Mrs Edwina Mape

CASE NUMBER:  1804730

DIBP REFERENCE(S):  CLF2018/19726

MEMBER:Adrienne Millbank

DATE:31 May 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 31 May 2018 at 3:35pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visa) – Tourist stream

– Visiting Australian citizen children – Genuine intention to stay temporarily – Extended period of stay in Australia – Intending to apply for a Parent visa –Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359AA

Migration Regulations 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 2 February 2018 to refuse to grant the visa applicant (the applicant) a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 January 2018. 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. The applicant had stayed in Australia for twelve months since 9 October 2016. If the application was granted for another twelve month period, the applicant would have stayed for more than 12 months in an eighteen-month period. The Delegate considered this de facto residence and found that the applicant did not meet the genuine temporary stay requirement. Given the extended period of stay that the applicant had already spent in Australia, the Delegate did not consider a shorter period of stay appropriate at this stage.

5. The review applicant appeared before the Tribunal on 18 May 2018 to give evidence and present arguments.

6. At the hearing the Tribunal advised the review applicant, pursuant to s.359AA of the Act, that it had information that could lead or contribute to the decision under review being affirmed, namely, a copy of the applicant’s international movement records, from 2000. The applicant was advised that she could seek an adjournment to consider her response to questions based on this information. The applicant did not seek an adjournment.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant was born in 1940 in the Philippines and is 78 years old and widowed at the time of decision. She has five children: two sons and a daughter, the review applicant, who live in Australia and are Australian citizens; and one son who lives in New Zealand, and whom she visits when she visits Australia.

9. 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.

10. In the present case, the applicant seeks the visa for the purposes of visiting her Australian citizen children. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221.

    Compliance with visa conditions

11. 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

12. The applicant’s international movement records indicate that since 2000, she has visited Australia twelve times. Her visitor history includes significant periods out of the country, for example, for around 20 months between 23 May 2013 and 5 March 2015.  However from 6 October 2016 – 5 January 2018, the applicant spent over 13 months cumulatively in the country, on several visitor visas, and less than two months, cumulatively, out of the county.

13. The Tribunal accepts the review applicant’s explanation at hearing that she was confused regarding the amount of time allowed in the country on different, subsequent Visitor visas, and her expression of regret that her confusion led to the refusal of her mother’s most recent application.

14. There is nothing before the Tribunal that suggests that the applicant has not complied with the conditions of her previously held visas, and would not comply with the conditions of future visas.

15. 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.

16. The applicant is a 78 year-old widow who has visited her Australian-citizen children and grandchildren twelve times since March 2000. She indicated on her application form that she has no intention of working or studying in Australia. The Tribunal accepts that the applicant does not intend to work or engage in study or training for more than three months during her proposed stay in Australia.

    All other relevant matters

17. The Tribunal has also considered all other matters relevant to whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted (cl.600.211(c)). 

18. The review applicant in her written submission and at hearing explained that there was never any intention on behalf of her mother to contravene her Visitor visa conditions. The review applicant stated that she was aware of the requirement, attached to her mother’s last visa, that her mother should not stay for longer than twelve months in an eighteen-month period, but did not understand why this period was taken by the Delegate as commencing from October 2016, when the applicant was on a three-year visa entitling her to multiple entries.

19. The review applicant confirmed at hearing that her intention is to lodge a Parent visa for the applicant. She stated that she and other members of the family have delayed this step because of the expense involved, and because they think it preferable to lodge this application when the applicant is onshore.   

20. The Tribunal notes that policy is to apply the genuine temporary entry requirement flexibly to parents of children in Australia, but that it is nevertheless not the intention that parents use the visa as a de facto resident visa. The applicant applied for an intended stay of up to twelve months, from 1 March 2018. The applicant’s previous visa had Condition 8558: ‘The holder must not stay in Australia for more than 12 months in any period of 18 months’ attached.

21. The review applicant confirmed that it is her mother’s intention to apply for another Visitor visa. She asked for clarification as to whether her mother would have been entitled to lodge another application in April this year, given the time that has elapsed since her previous visa grants and expiry dates. The Tribunal stated that it was unable to provide advice regarding her mother’s visa applications. The Tribunal suggested that an application for a Parent visa would not jeopardise her mother’s Visitor visa application, or vice-versa; and that a six month stay out of the country might be an appropriate period before re-applying for a Visitor visa, but again advised the applicant that it was unable to provide advice on immigration and visa matters, and to seek advice from the Department, or a migration agent.

22. At hearing the review applicant confirmed that all of the applicant’s children have settled in Australia and New Zealand, and that the applicant has no employment; no significant assets; and no remaining significant family or social connections in the Philippines. The review applicant advised that the applicant has been supported financially by her children in Australia and New Zealand. She advised that all of the applicant’s eight grandchildren are Australian citizens, resident in Australia. She confirmed, as noted, that the applicant intends to lodge a Parent visa application when the family raises the funds required.

23. The applicant’s incentives to remain in Australia overwhelmingly outweigh her incentives to return to the Philippines. As noted above, it is not the intention of a Visitor visa to allow an applicant to enter and reside in Australia pending the eventual lodgement of an application for a permanent visa.

24. 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

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

    Adrienne Millbank
    Member