McKean (Migration)

[2018] AATA 3627

McKean (Migration) [2018] AATA 3627 (7 August 2018)

Corrigendum

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Kristen-Leigh McKean

VISA APPLICANT:  Mr Paul McKean

CASE NUMBER:  1806343

DIBP REFERENCE(S):  BCC2017/4848617

MEMBER:Adrienne Millbank

DATE OF DECISION:  7 August 2018

DATE CORRIGENDUM

SIGNED:24 September 2018

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1.The Date of Decision on the original Decision Record which states 7 August 2019 should be changed to 7 August 2018.

Adrienne Millbank
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Kristen-Leigh McKean

VISA APPLICANT:  Mr Paul McKean

CASE NUMBER:  1806343

DIBP REFERENCE(S):  BCC2017/4848617

MEMBER:Adrienne Millbank

DATE:7 August 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 07 August 2018 at 9:42am

CATCHWORDS
Migration – Visitor (Class FA) visa – Sponsored family stream – Adverse immigration history – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 600.231, 600.612 Schedule 8 Condition 8101

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 6 February 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 is a national of the Republic of Ireland. He applied for the visa on 18 December 2017. 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 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 (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 Delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 25 July 2018 to give evidence and present arguments. The Tribunal received oral evidence from the visa applicant in Thailand, and also received oral evidence from a sister and a friend of the review applicant.

6. The review applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

7. A further submission was provided on 2 August 2018, following the hearing, and was considered by the Tribunal.

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

   CONSIDERATION OF Claims and evidence

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 visa applicant seeks the visa for the purposes of visiting his family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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 (cl.600.211(a)).

    Compliance with visa conditions

12. The applicant’s immigration and relevant personal history, summarised from a written submission provided by the representative and the Delegate’s decision, a copy of which was provided to the Tribunal, is as follows:

    • 6 August 2011 first arrived in Australia on a Working Holiday (Subclass 417) visa, valid to 6 August 2012;
    • 28 June 2012 applied for a Working Holiday (Extension) visa, which was refused on 18 October 2012 due to breach of condition 8547.
    • 15 November 2012 Bridging A visa granted in association with this application ceased;
    • 14 January 2014 detained by immigration officers in Brisbane as an unlawful non-citizen;
    • 15 January 2014 fined $300 without conviction, in the Brisbane Magistrate’s Court,  for ‘Possessing Dangerous Drugs’, namely testosterone;
    • 24 January 2014 applied for a Protection visa;
    • 19 January 2014 granted the first of a succession of Bridging E Visas and released from detention;
    • 17 March 2014 married review applicant;
    • 20 March 2014 lodged Partner (combined UK 820/BS 801) visa application;
    • 24 March 2014 withdrew application for a Protection visa;
    • 18 November 2014 onshore Partner visa application refused.  Appealed refusal to the then Migration Review Tribunal (MRT);
    • 31 December 2014 parties’ son born;
    • 16 November 2015 MRT affirmed decision to refuse the applicant a Partner (Subclass 820) visa;
    • 15 August 2017 Ministerial Intervention refused;
    • 23 August 2017 parties’ daughter born;
    • 1 November 2017 left country on a Bridging E visa;
    • 6 November 2017 lodged application for an offshore Partner (Subclasses 309/100) visa;
    • 13 November 2017 applied for a Visitor (Sponsored Family) (Subclass 600) visa;
    • 11 December 2017 application for a Visitor (Sponsored family)(Subclass 600 ) visa refused;
    • 18 December 2017 applied for a Visitor (Sponsored Family) (Subclass 600) visa;
    • 6 February 2018 application for a Visitor (Sponsored Family) (Subclass 600) visa refused. Appealed decision to the Tribunal.

13. The applicant claimed through his representative that he maintained compliance with the conditions of all of his Bridging E visas granted since 2014, and that he left the country while on a valid bridging visa. The review applicant advised that the applicant held work rights while on all his bridging visas. She advised that he worked a concreter, and in other roles, including occupational health and safety, for building companies, while in Australia.

14. The Tribunal accepts that the applicant has complied with the conditions of his Bridging E visas since he was released from immigration detention, but finds, on the evidence provided, that he did not comply with the conditions of his only substantive visa, and that he did not comply, when he overstayed, with the conditions of his Bridging visa granted in association with his application for a Working Holiday Maker (Extension) visa. The Tribunal finds that there was substantial compliance with the applicant’s Working Holiday Maker visa, in that he sought another visa and offered an explanation for his work-related non-compliance, but finds that there was not substantial compliance with the Bridging visa, because he overstayed.

15. The Tribunal accepts, on the evidence provided, including passport stamps, that the applicant has travelled to a number of other countries, namely the USA, Japan, Cambodia and Thailand since leaving Australia. There is no evidence before the Tribunal that he has not complied with entry and visa conditions in these countries. The Tribunal places little weight on this apparent compliance for the reason that the applicant has indicated that he has little incentive to remain in any of these countries. At hearing he stated that he is living in Thailand only because he can live there frugally and it is close to Australia, with less travel time to Australia than Ireland. Both the applicant and the review applicant stated several times at hearing that it is the applicant’s desire and intention to live permanently in Australia, and that pending the grant of a permanent visa, his intention is to visit and stay with his family for as long as possible.

16. 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.600.612):

    ·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.

17. The applicant applied to visit his family in Australia for a stay of up to twelve months, from 24 December 2017 to 21 December 2018. At hearing the parties advised that the applicant now intends to come as soon as possible and, as noted, to stay for as long as possible. The applicant advised that he is doing nothing in Thailand other than waiting for a visa to return to Australia. The review applicant advised that the applicant fills in his time in Thailand exercising and sightseeing, and that he lives frugally, using cash.

18. Regarding condition 8101, the Tribunal asked the review applicant about the parties’ financial situation and how they intended to fund the applicant’s visit. The Tribunal pointed out that the review applicant had obtained a fee reduction from the Tribunal on the grounds of her reliance on Centrelink benefits. The review applicant confirmed that she is in receipt of a ‘single’ supporting mother parenting payment. She confirmed that the applicant has not supported her or her children financially since leaving the country. She advised that she has not worked since she was made redundant in June 2017, and that she suffers from depression and anxiety. She advised that after the applicant left the country she and her children lived for some time rent-free with her mother and brother; that at the time of decision they are living rent-free with her grandmother; and that she and her children live very frugally. She stated that the applicant would live with her and the children in her grandmother’s house, and they would not need to pay rent for the duration of his visit.

19. Evidence was provided in the form of a bank statement that on 15 July 2018 the applicant held around $60,500 in a personal savings account in Australia. Asked why she didn’t draw on these funds to support herself and her children, the review applicant stated that this was the applicant’s ‘war-chest’ to be used for the purpose of achieving a migration outcome. The applicant advised that this money was his redundancy payout, and that he also has recourse to financial support from his parents. Evidence was provided that the applicant’s mother has given him a credit card attached to her own account. The applicant stated that the rental from a property his parents own in Ireland is deposited into the credit account for his use, and that the property, in Portstewart, is at his disposal for him to live in whenever he returns to Ireland.

20. A letter signed by the applicant’s parents on 21 July 2018 was provided, stating that the residence they own in Portstewart would be gifted to the applicant on his return to Ireland. The Tribunal gives this claim regarding a property gift little weight in terms of an incentive for the applicant to return to Ireland, for the reason that the applicant is already in receipt of rental from this property. At hearing he acknowledged that he will inherit this property regardless of any visit to Australia, and that his intention and preference is to live in Australia. 

21. The Tribunal asked the parties at hearing why the applicant had not obtained employment, in Ireland or one of the other countries he has stayed in since leaving Australia, in order to support financially his wife and family and save for his intended visit. The Tribunal pointed out that the parties’ representative had advised, in a written submission, that the applicant would be ‘very employable’ in Thailand, and would also ‘be able to find employment easily in the construction field’ in Ireland.  The parties stated that they did not think it would take as long as it has for the applicant to obtain another visa. The applicant stated that he lives extremely frugally, and cheaply, in Thailand, drawing on his savings from his redundancy, and his parent’s support. The review applicant claimed that the whole family could live together frugally in Australia, with her grandmother, for the twelve months of the applicant’s visit.

22. When asked directly, the applicant claimed that he has no intention of working in Australia; that he intends to spend the entirety of his twelve-month visit just being with his family. The applicant is 29 years old; has experience working in the building industry while in the country unlawfully and on bridging visas; and has a twin brother living in Brisbane employed in the building industry. The Tribunal accepts that the applicant’s funds in his personal bank account appear sufficient to support him for a year. The Tribunal notes however the applicant advised that he would draw on these funds to post a security bond, if required, and that this would mean less funds for his day-to-day living and may lead him to working to support himself. Having considered the applicant’s immigration and employment background; the evidence regarding the funds available him; and the financial situation of his family in Australia, the Tribunal is not satisfied that the applicant intends to comply with the ‘no work’ condition 8101.

23. The applicant indicated that he has no intention of undertaking any study or training while in Australia on a Visitor visa; of applying for another Protection visa; or remaining beyond the limit of his stay. The parties displayed a good understanding of the conditions that would be attached to a Visitor visa that would be granted to the applicant. The applicant confirmed to the Tribunal that he has no reason to fear returning to Ireland; that he no longer has grounds to justify applying for another Protection visa. The parties claimed that the applicant would leave the country and return to Ireland before the expiry of the Visitor visa in order to be out of the country, as required, to receive his offshore Partner Provisional (Subclass 309) visa. The Tribunal accepts that the applicant does not intend to study during the period of the intended visit, and that it is his intention to return to Ireland for the purpose of being out of the country to receive an offshore Partner visa.

    Genuine intention to stay temporarily for the purpose for which the visa is granted

24. The Tribunal has also considered all other relevant matters relevant to genuine intention to stay temporarily in Australia for the purpose for which the visa is granted (cl.600.211(c)). 

25. The applicant’s parents live in Ireland, and he has a sister who lives in the UK. His wife and children, and his twin brother and his family, are in Australia. As discussed above, the applicant has an asset in Ireland, in the form of a property he will inherit, but has access to rental income from this property wherever he lives. The applicant, while he acknowledged that he could obtain work in Ireland, has no employment in that country, or in Thailand, where he is living at the time of decision. The applicant is spending his time waiting for a visa. On his own admission, the applicant’s incentives to remain in Australia outweigh his incentives to return to Ireland or another country. The applicant has lived and worked in Australia and has indicated to the Tribunal, in written statements and at hearing, that it is his desire and intention to live and work and raise a family in this country.

26. Through oral testimony and in written statements of support, a friend and a sister of the sponsor described the review applicant’s mental health as having noticeably deteriorated through her ‘forced separation’ from her husband. A number of other statements were provided by friends and colleagues of the parties stating that they had observed the review applicant to be emotionally and financially dependent on the applicant. A report dated 15 July 2018 was provided by the review applicant’s psychologist, advising that the review applicant suffers from a major depressive disorder, brought about through separation from her husband and subsequent acute financial stress. The psychologist reports the review applicant as believing that her condition will improve only with the return and stay of the applicant. The Tribunal finds this evidence to weigh against the likelihood of the applicant leaving Australia in accordance with the conditions of a Visitor visa, should his Partner visa application be unsuccessful.

27. The Tribunal asked the review applicant why, given her suffering; given her dire financial situation including that that she has not been employed since June 2017; and given that she and the children have not yet met her in-laws in Ireland, she did not join the applicant, and live with him in Ireland with their children, pending or possibly beyond the outcome of the Partner visa application. The review applicant became overwhelmed with distress at this question, and was unable to provide a response that the Tribunal found coherent or credible. She stated that it was difficult to make long-haul flights with two young children.

28. The Tribunal asked the review applicant why she had not at least visited the applicant in Thailand, as the applicant claimed to miss her and the children, and it involved a shorter flight. She stated that it was difficult to make any international flight, with young children. The Tribunal asked why she did not travel with a friend or relative to help her, for example the sister or friend who provided testimony at hearing. The review applicant’s friend and sister stated that it was unreasonable to expect other people to drop what they were doing to take a holiday with the sponsor; that it was easier for the applicant to come to Australia. The review applicant then claimed that she and the applicant had planned to meet up in Bali, but gave up this plan following the eruption of the volcano because of the costs involved. The applicant claimed that his living conditions in Thailand were so poor as to preclude his wife and children from visiting him there.

29. The Tribunal finds, and the parties acknowledged, that the applicant is seeking a migration outcome. At hearing the applicant confirmed that the reason he would comply with the conditions of a Visitor visa, besides his greater maturity and responsibility that has come with family and a better understanding of Australia’s migration law, is that he is determined not to jeopardise his offshore Partner visa application. He advised that he has ‘invested a significant amount of money’ including through migration agents, in pursuit of this migration outcome.

30. The Tribunal makes no finding in relation to the applicant’s offshore Partner visa application. The Tribunal notes the applicant’s previous non-compliance with his visa conditions.  If the applicant’s Partner visa application is successful, the Tribunal accepts that he would go offshore in order for the visa to be granted, and accepts that to this extent he intends genuinely to stay temporarily for the purpose of visiting his family in Australia. In the event that the Partner visa application is not successful, and the applicant is onshore at the time the decision is made, the applicant would not have the reason of needing to be offshore to be granted the visa, to leave before the expiry of a Visitor visa. Accordingly, the Tribunal is not satisfied that the Partner visa application would act as an incentive for the applicant to return to Ireland or Thailand at the expiration of the Visitor visa. 

1. Having considered the evidence, including the applicant’s immigration history, the claims and the circumstances of the parties, 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. The Tribunal finds that the requirements of cl.600.211 are not met.

   decision

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

   Adrienne Millbank
   Member