Marquez (Migration)

[2021] AATA 1902

Marquez (Migration) [2021] AATA 1902 (30 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ma Debbie Marquez

VISA APPLICANT:  Mr Charly Estrella

CASE NUMBER:  1900927

HOME AFFAIRS REFERENCE(S):          BCC2018/4973546

MEMBER:Stephen Conwell

DATE:30 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 30 April 2021 at 12:20pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – parties claim to have a de facto relationship – limited evidence of the applicant’s finances – parties have applied for a Partner visa – incentive to continue working abroad – decision under review affirmed        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 Home Affairs on 17 December 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). Tagalog

2. The visa applicant (applicant)applied for the visa on 9 November 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 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the applicant to satisfy the Minister that the 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 applicant did not meet cl 600.211 as the delegate could not be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of telephone hearing. The Tribunal exercised its discretion to hold the hearing by telephone. The parties raised no objections as to conducting the hearing by telephone.

6. The parties participated in the hearing by telephone on 29 April 2021 to give evidence and present arguments. The Tribunal received oral evidence from the review applicant (sponsor) and from the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The interpreter also attended the hearing by telephone.

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

   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 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 applicant seeks the visa for a period of up to three months for the purpose of visiting her daughter, the sponsor. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

10. In considering whether an 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)), however because the applicant has not previously travelled to Australia, this is not relevant. 

11. The Tribunal must also consider whether the 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. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

13. The concern for the Tribunal, as it was for the delegate, is whether there is  a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. 

    Summary of claims and evidence

14. The following relevant information is summarised from the application form, the sponsor’s statutory declaration dated 9 November 2018, the oral testimonies of the parties and other evidence found in the Department and Tribunal files:

    ·     The applicant is a 54-year-old citizen of the Philippines; the sponsor is a 52-year-old Australian citizen;

    ·     the applicant intends to visit Australia for a period of up to 3 months;

    ·     the parties claim to have commenced a de facto relationship on 27 March 2016;

    ·     the sponsor lives alone in her own home in South Australia; her mortgage is almost paid off;

    ·     the sponsor has three sisters living in Australia and two brothers in the Philippines. A third brother works in Saudi Arabia. Both her parents are deceased;

    ·     the sponsor estimated that since  commencement of their de facto relationship, the parties have spent approximately 10 months together, all of which has required her to travel to the Philippines;

    ·     in October 2019 the sponsor accepted a retirement package from her Australian employer, in part to allow her to spend more time with the applicant in the Philippines.  She returned to Australia in March 2020. She has not worked since October 2019, and whilst she is financially comfortable, she is now beginning to look for work;

    ·     with her income in Australia, the sponsor has built a house in the Philippines for which she and the applicant are  listed as joint owners.  The applicant has been living in this house alone, although his mother sometimes stays with him on extended visits;

    ·     the applicant spent 15 years working in the Middle East. He has never had any migration issues or breached any visa conditions;

    ·     the applicant has eight siblings, four of whom are deceased. His mother is a widow. He also has five children who are all in the Philippines. None of his children are dependent upon him;

    ·     the applicant has not worked since leaving the Middle East in 2016, although the sponsor mentioned that the applicant did work for several months in a tourist resort in the Philippines. His main source of income is from raising goats for sale. The sponsor sends him remittances from Australia from time to time;

    ·     the applicant stated he has a motor car and a tricycle. He claims to have  approximately 24,000 pesos in his bank account;

    ·     should he be granted a Visitor visa, the applicant stated that he would sell his goats so that they would no longer be his responsibility. He agreed to abide by all visa conditions, including the requirement that he not work in Australia;

    ·     the applicant has not departed the Philippines since returning from the Middle East in 2016. He has never applied for a visa to travel to Australia.

15. In the present case, the applicant seeks the visa for the purposes of visiting his de facto partner, the sponsor, an Australian citizen, and to see Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

16. No evidence was tendered supporting the financial situation of either party. The Tribunal is prepared to accept on fact value that the sponsor is close to owning her home in Australia outright, however it is less accepting of the lack of evidence for the applicant’s personal financial situation or of the parties’ finances in the Philippines. 

17. The Tribunal’s concerns regarding the financial circumstances of the parties extend also to the fact that neither party is currently working and receiving income on a regular basis.

18. There is no evidence before the Tribunal to indicate that the applicant wishes to or intends to engage in study or training whilst in Australia.

19. The Tribunal does not consider that the applicant is entitled to a substantive visa while remaining in Australia. The sponsor stated that the parties have applied for a Partner visa on the basis of their de facto relationship.

20. The Tribunal has to weigh the incentives for the applicant to comply with the conditions of the proposed visa, and the incentives not to do so.

21. The Tribunal is concerned that the applicant has no strong ties which bind him to the Philippines – his five children are now independent adults and whilst his mother stays with him occasionally, he has other siblings who are able to care for her. On the other hand, his closest  current relationship is with the sponsor, an Australian citizen.

22. The applicant hasn’t been in meaningful employment since 2016. His rearing of goats for sale appears to be more in the nature of a hobby than a business venture. With both parties not working at the moment, the Tribunal is concerned that despite assurances to the contrary, the applicant may seek to find work in Australia, which is contrary to the requirements of the visa.  The Tribunal’s concerns were such that it is not prepared to accept the assurances, nor is it satisfied, that the applicant’s intention is for a genuine visit, nor is it satisfied that he does not intend to work during the term of any proposed visitor visa.

23. According to the Department of Foreign Affairs and Trade (DFAT) most recent Country Information Report[1]

    According to the World Bank, 21.6 per cent of the population lives in poverty according to a national poverty line that takes into account the minimum amount of money that a household needs to obtain food and non-food essentials.[2]

    [1]  DFAT Country Information Report, The Philippines  – December 2018

    [2]  Ibid [2.12]

24. The Tribunal is concerned that such conditions might offer a significant incentive for the applicant to earn income while in Australia. Indeed he, like millions of other Filipinos, has spent his entire working life abroad,

    Each year, millions of Filipinos go overseas to work. Known as ‘Overseas Filipino Workers’ (‘OFWs’), official figures show 2.2 million Filipinos worked overseas during the second and third quarters of 2016 alone. According to the World Economic Forum, Filipinos are the eighth largest diaspora in the world.[3]

    Conclusion

    [3]  Ibid [2.7]

25. The Tribunal accepts that the applicant would like to see the sponsor and spend time with her in Australia.  It also accepts that their current circumstances have required the sponsor to travel to the Philippines in order to maintain the relationship and to spend time with the applicant.  There is nothing in the evidence  or in  the testimony of the parties for the Tribunal  to question their credibility. Nevertheless, the Tribunal, after consideration of all of the evidence, is not satisfied that the applicant has sufficient incentives to stay temporarily in Australia and to comply with all visa conditions should one be granted to him. Further, the Tribunal is not prepared to accept that he can afford to come to Australia for a three month holiday at a time when neither party is in paid employment nor earning a regular income.

26. The Tribunal notes the applicant’s assurance that he would be accepting of any financial security bond that the Department might wish to impose upon the granting of a visa, however  this does not allay the Tribunal’s concerns that the applicant does not genuinely intend only a temporary visit to Australia. The Tribunal is not prepared to accept the assertions that the applicant will comply with the conditions of a Visitor visa, including that he will not work in Australia. The sponsor advises that the parties have also lodged a Partner visa application, which may be the more appropriate visa pathway for them to pursue.

27. Having considered all the evidence cumulatively, the Tribunal is of the view that the factors that may encourage the applicant to remain in Australia are more compelling than the factors that may encourage him to depart. The Tribunal finds there is insufficient persuasive evidence to support the contention that the applicant genuinely intends to stay temporarily in Australia.

28. For the above reasons the Tribunal is not satisfied that the 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

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

    Stephen Conwell
    Member