Namoch (Migration)

[2017] AATA 2316

Namoch (Migration) [2017] AATA 2316 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mrs Mina Namoch

VISA APPLICANT:  Miss LISHA EILEEN NAMOCH

CASE NUMBER:  1712043

DIBP REFERENCE(S):  BCC2017/1277200

MEMBER:Roslyn Smidt

DATE:8 November 2017

PLACE OF DECISION:  Sydney

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 and

·PIC 4011 for the purposes of cl. 6000.213 of Schedule 2 to the Regulations.

Statement made on 08 November 2017 at 5:22pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Previous failed visa application – Commitment to support younger sister – Desire to pursue career in Philippines – Uncertain future in Australia

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211, cl 600.213, cl 600.232

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 11 April 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 5 April 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 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.600.213, which requires the visa applicant to satisfy public interest criteria 4011 which provides that, if the applicant is affected by the risk factor specified in PIC 4011 (2), the applicant must satisfy the Minister that, having regard to the applicant's circumstances in the applicant's country of usual residence, there is very little likelihood that the applicant will remain in Australia beyond the authorised period of stay. An applicant is affected by the risk factor if, during the period of 5 years immediately preceding the application, the applicant has applied for a visa for the purpose of permanent residence in Australia: PIC 4011 (2)(a).

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. She noted that the as the applicant had applied for a Carer (Subclass 116) visa which was refused on 20 November 2014 she was subject to cl.600.213 and PIC 4011 (2) and found that she had not established that she had a genuine intention to return to the Philippines at the end of her stay. The delegate also noted that the applicant had failed to mention that she had been refused a visitor visa in her current visitor visa application. She also observed that while the applicant had provided evidence of current employment and savings in the Philippines and her father and other relatives remained in the Philippines this did not in her view provide a significant incentive for her to return to her homeland. She also noted that the applicant had applied for a three months visa which she noted was a long time for her to be absent from her job and only source of income.

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

   BACKGROUND

   The application

6. The visa applicant originally sought to come to Australia to attend her uncle’s silver wedding anniversary in September 2017, but also indicated that she wished to be able to visit her mother and other relatives in Australia on a regular basis. Her application indicated that she wished to be in Australia from 15 August 2017 to 30 September 2017 to attend her uncle’s silver, but also stated that she wanted to apply for a visa which would be valid for up to 3 months. She also provided evidence that she had been granted two weeks leave from her job in the Philippines.

7. At the hearing it was established that the visa applicant had never wished or intended to remain in Australia for 3 months, but understood that this was the shortest period for which a visa would be granted. She said that she had intended only to stay for the two week period corresponding to her leave. She said that if her application was successful she would apply for leave and hoped to spend three weeks visiting her family in Australia, possibly over the Christmas period.

8. If her application is successful the visa applicant will pay her own travel costs and will stay with her family while in Australia.

   The visa applicant

9. The visa applicant is a 31 year old single woman from Manila in the Philippines. As noted above, her mother and two younger brothers reside in Australia. Her mother was granted a carer visa in 2014. The applicant was included as a dependent on this application but was refused a visa because she was not dependent on her mother at that time.  The applicant’s father, sister and other members of her extended family continue to reside in the Philippines.

10. The applicant works for JP Morgan Chase & Co as a Fund Accounting Specialist. She has provided evidence of her employment including a copy of a pay slip and evidence of regular deposits of her salary into a bank account. She has also provided evidence that she has savings of $3,700.

11. At the hearing the visa applicant explained that she had worked for JP Morgan Chase & Co for 6 years. She currently works in the investment banking area. She started as an adviser, then in 2014 she was promoted to subject matter expert and in 2015 was promoted to a team manager position. She said that she currently earns 45,000 a month ($1200 Australian), which is above average for the Philippines and looked forward to another promotion next year. She anticipated continuing to have a successful career with JP Morgan Chase and Co in the future and would not want to jeopardise this by failing to return to her work at the end of her approved leave.

12. At the hearing the visa applicant said that she lived with her sister in a home owned by the review applicant. Her sister recently left the work force to return to her studies and is largely dependent on her financially. They also depend on each other for emotional support. She also maintains relationships with her father maternal and paternal aunts and her grandfather. She

13. At the hearing I noted that the visa applicant had failed to mention her previous failed visitor visa application on her current application. She said that her mother had completed the application on her behalf and had been confused about the requirements.

14. The consequences of failing to comply with the conditions attached to the visa she had applied for were discussed at the hearing. The visa applicant was adamant that she would not breach any of these conditions as she was aware of the problems this would cause. She was particularly anxious not to do anything which would make it difficult for her younger sister to visit family in Australia in future. 

    The review applicant

15. The review applicant is the visa applicant’s mother. As noted above, she migrated to Australia in March 2015 after being granted a carer visa to care for her aunt. She continues to live with and care for her aunt and also works 16 hours a week as a medical receptionist. Her sons live with her and are now working in the hospitality industry.

16. The review applicant provided the same account of the visa applicant’s family composition and relationship with her sister as that given by the visa applicant.

17. The review applicant said that while she had not sponsored anyone to visit her in Australia but her father and sister had visited her in Australia in 2015 and had complied with the conditions on their visas.

18. The review applicant said that she was very confident that her daughter would return to the Philippines before her visa expired as she had a good job and did not want to lose and she took responsibility for her sister and for the house owned by the review applicant. She said that she would be happy to provide a bond to support her application.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in this case is whether cl.600.211 is met. This 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.

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

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)). The visa applicant has not visited Australia previously and therefore cannot be assessed against this criterion.

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)). 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.

23. The visa applicant plans to visit her family in Australia for a period of 2 or 3 weeks. There is nothing in the evidence which suggests that she would work or study during her stay. I am satisfied that she will comply with conditions 8101 and 8201.

24. Condition 8503 refers to entitlement, and is not a condition that involves compliance.  Both applicants were aware of and understood this condition.

25. With regard to conditions 8531 the visa applicant and the review applicant both provided convincing evidence regarding the visa applicant’s intentions and the reasons why she would not remain in Australia after the end of her permitted stay.  I found the visa applicant’s account of her desire to continue to pursue her career with CP Morgan Chase in the Philippines and her commitment to support her younger sister who would be left without close family support in the Philippines and would also have difficulty obtaining a visa to visit Australia if she failed to return particularly persuasive. In these circumstances I am satisfied that the visa applicant will comply with condition 8531.

26. A further requirement for this visa is that the visa applicant meets certain public interest criteria, including Public Interest Criterion (PIC) 4011: cl.600.213. PIC 4011 provides that, if the applicant is affected by the risk factor specified in PIC 4011 (2), the applicant must satisfy the Minister that, having regard to the applicant's circumstances in the applicant's country of usual residence, there is very little likelihood that the applicant will remain in Australia beyond the authorised period of stay. An applicant is affected by the risk factor if, during the period of 5 years immediately preceding the application, the applicant has applied for a visa for the purpose of permanent residence in Australia: PIC 4011 (2)(a).

27. The delegate, in the decision statement, referred to the visa applicant having been refused a Carer(Residence) Class BU visa on 20 November 2014. The Tribunal discussed this matter with the review applicant and visa applicant at the hearing. They said that at the time the entire family had been included in the application, but the visa applicant had not met the relevant criteria and had been refused. The visa applicant said that she accepted that decision and had concentrated on building her life and career in the Philippines. She is now committed to her job and is happy living in the Philippines with her sister.

28. The Tribunal notes that the only visa for which the visa applicant could apply in Australia would be a protection visa and that if she overstayed her visa she would almost certainly become and illegal entrant with no right to work or study. Her mother currently works only part time and her brothers do not have high paying jobs. The Tribunal finds it extremely unlikely that the visa applicant would give up her job and life in the Philippines for what would be at best a most uncertain future in Australia.

29. After careful consideration of the applicants' oral evidence and explanations, the Tribunal accepts that, while the visa applicant may have wished to migrate to Australia in 2014, she is aware that this is not currently a possibility for her and she would not jeopardize her current employment or leave her younger sister alone in the Philippines to remain in Australia. Therefore, the Tribunal is satisfied that there is very little likelihood that she will remain in Australia beyond the authorized period of stay.

30. For all of 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 and PIC 4011 for the purposes of cl. 6000.213 are met.

31. 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

32. 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 and

    ·PIC 4011 for the purposes of cl. 6000.213 of Schedule 2 to the Regulations.

    Roslyn Smidt
    Member