McMartin (Migration)

[2018] AATA 1938

McMartin (Migration) [2018] AATA 1938 (11 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Darren Noel McMartin

VISA APPLICANT:  Mrs Cynthia Lyn Payabyab Enriquez

CASE NUMBER:  1725402

DIBP REFERENCE(S):  BCC2017/3624321

MEMBER:Christopher Smolicz

DATE:11 May 2018

PLACE OF DECISION:  Adelaide

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 11 May 2018 at 3:32pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – Visa compliance history – Willingness to provide security – Financial supporting sponsor – Pending partner visa application – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 600.211, 600.224, 600.225

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 12 October 2017 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 4 October 2017. The visa applicant is 35 years old. She was born in the Philippines. She has never previously travelled to Australia. She applied for the visa so that she could visit her husband, Mr McMartin, the review applicant who is an Australian citizen.

3. 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.

4. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. 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.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the visa applicant was unemployed and unable to demonstrate that she has any strong economic ties to the Philippines that would serve as an incentive for her to return. The delegate was also concerned that the applicant declared in her application that she had overstayed her visa when she was living in South Korea.

7. On 18 October 2017 Mr McMartin applied to the Tribunal to review the delegate’s decision.

8. Mr McMartin requested that the matter be given priority because his father was admitted to an aged care facility in October 2017 and is suffering from poor health. He wants the visa applicant to be able to visit his father. In support of the submissions the Tribunal was provided with a letter from the review applicant’s father’s treating medial practitioner. The Tribunal had regard to the submissions and agreed to give the matter priority listing. Mr McMartin appeared before the Tribunal on 11 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from the Philippines and from Ms Valarie McMartin. The Tribunal found the visa applicant, Mr McMartin and Ms McMartin to be credible witnesses and has accepted their evidence in its entirety.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Issues

10. 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.

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

    Evidence

12. Mr McMartin is employed as a full-time sales assistant at Menzel Plastics. He has a solid work history having worked previously for Mitsubishi Motors. He declared that he earns about $50,000 per year and he is the owner of a residential property in Happy Valley. He provided copies of his home insurance certificate, payslip and PAYG Payment Summary in support of his evidence.

13. Mr McMartin submitted that he met the visa applicant online and they formed a relationship in April 2013. He has travelled to the Philippines in December 2014 and in March 2016 to visit the visa applicant and her family.

14. The Tribunal notes that in October 2016 the visa applicant applied for an earlier visitor visa and was sponsored by Mr McMartin to travel to Australia. The visitor visa application was refused because the review applicant was not an eligible sponsor at the time. Mr McMartin said that his plan was to marry in Australia. When the first visitor visa was refused he travelled to the Philippines and on 15 June 2017 he married the visa applicant in the Philippines. A copy of the marriage certificate is located on the Department of Immigration’s (the Department) file.

15. On 25 September 2017 the visa applicant lodged an offshore Combined Partner (subclass 309/BC100) visa application, sponsored by her spouse, the review applicant. The spouse visa application is currently under consideration by the Department.  The Tribunal explained to Mr McMartin that the purpose of the hearing was not to canvas issues relevant to his partner visa.

16. Mr McMartin described himself as a law-abiding citizen who would ensure that the visa applicant complies with the terms of the visitor visa. He said that he is committed to financially supporting the visa applicant in Australia. He submitted that it was in his interest to ensure that the visa applicant complies with the terms of her visitor visa because he wants to ensure the partner visa application is not jeopardised.

17. According to the visa application, the visa applicant worked in South Korea as a nanny in the period December 2011 to August 2016. The Tribunal questioned Mr McMartin about the visa applicant’s past visa compliance history in South Korea. Mr McMartin said that the visa applicant was previously working as a nanny in Singapore. The work was through an agency. When her contract ended she was travelling with her boss to South Korea. The visa applicant was offered work as a nanny in South Korea without a formal contract.  She did not apply for a working visa at the time and was working illegally in South Korea. She had to work to support her family in the Philippines. The Tribunal told Mr McMartin that it was concerned about her past visa history.

18. Mr McMartin submitted that the visa applicant was very loyal to her family and had to work so that she could support them financially. Now that her family have purchased a home there is no longer a need for her to work and he sends the visa applicant $300 per month. Mr McMartin submitted that it was very important to him that the visa applicant was able to spend time with his father before his condition deteriorates further.

19. The Tribunal questioned the visa applicant about the circumstances in which she worked illegally in South Korea. The Tribunal finds that the visa applicant’s evidence was consistent with that of Mr McMartin. The visa applicant said that her boss in South Korea did not want to apply for a work visa because it was expensive. She was not in a position to argue with him and had no choice but to work illegally if she wanted to help her family in the Philippines. The visa applicant confirmed that she intended to return to the Philippines and that she did not need to study or work in Australia. Her long term goal is to be with her husband.

20. Ms McMartin said that she is in a financial position to help support the visa applicant in Australia. She regularly speaks to the visa applicant online and wants to meet her in person. She supports her son’s relationship. She wants the visa applicant to meet her husband before his health deteriorates.

21. 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)).  On the evidence the visa applicant has never held any type of visa for Australia. There are no relevant considerations pertaining to cl.600.211(a).

22. 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)).

23. The sponsorship requirement in the Tourist stream applies only if the applicant intends to visit certain kinds of relatives, and if the Minister has required the applicant (and each other applicant who is a member of the applicant’s family unit, or in relation to whom the applicant is a member of the family unit) to be sponsored by a specified Australian relative under cl.600.224(1). This capacity of the Minister to request sponsorship is intended to provide additional flexibility in relation to applicants who may otherwise not meet the visa criteria (see Explanatory Statement to SLI 2013, No. 32, p.18).  One effect of requiring sponsorship is to engage the security requirement criterion in cl.600.225.

24. Mr McMartin indicated he is willing and able to provide a security if requested. The applicant’s migration agent confirmed that the delegate has not required a sponsorship under cl.600.224 in the present case. 

25. The review applicant has indicated to the Tribunal that he is prepared to sponsor the visa applicant and is willing to provide $5,000 security to ensure compliance with the visa conditions.  He gave oral evidence to the Tribunal that he is employed full-time and earns sufficient income and also owns the property where he lives.  On this basis the Tribunal is satisfied that the applicant is willing and able to provide a financial security if requested. The Tribunal has discretion to require a sponsorship in accordance with cl.600.224(1) and in the circumstances of the present case, considers it appropriate to do so.  On this basis, the applicant meets cl.600.224(1). 

26. The Tribunal will leave it to the visa applicant to make arrangements to provide the sponsorship as required to meet cl.600.224(2) and to the Department upon remittal to consider whether to approve the sponsorship as made (cl.600.224(3)). 

27. Having determined to require the visa applicant to be sponsored, the Tribunal will now go on to consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)).

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

29. On the basis of the evidence before it, the Tribunal makes the following findings.

30. The Tribunal is concerned about the visa applicant having worked and lived for five years in South Korea without an appropriate visa. The Tribunal notes however that the visa applicant disclosed this information to the Department in her visa application. The Tribunal accepts that the visa applicant was placed in a difficult position by her employer in South Korea. This Tribunal notes that it is not uncommon for female Filipino domestic workers to be exploited in such circumstances in Australia or overseas.[1]

    [1] >

    The Tribunal accepts the visa applicant was motivated to work to support her family when she was in South Korea. The Tribunal finds that the visa applicant is now in a new phase of her life where she no longer needs to engage in illegal work to support her family. The Tribunal accepts that Mr McMartin is able and willing to provide financial support to the visa applicant during her stay in Australia.

31. With regard to her relationship with Mr McMartin, the Tribunal considers that the visa applicant has followed standard migration procedures by making a partner visa migration application offshore and her long-term intention to reside here with the review applicant can, and should, be distinguished from her short-term intentions with regard to a visitor visa application.  Furthermore the Tribunal notes that the visa applicant is required to be outside Australia when the Subclass 309 visa is granted.  The visa applicant’s short-term intention is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.  The Tribunal considers that the fact that the visa applicant will need to be offshore in order to finalise the offshore partner visa application is a relevant incentive for her to comply with the above visa conditions and return to the Philippines.

32. 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

33. 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.

    Christopher Smolicz
    Member