O'Reilly (Migration)

[2019] AATA 6396

O'Reilly (Migration) [2019] AATA 6396 (4 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Cecilia O'Reilly

VISA APPLICANT:  Mrs Gerarda Danzil Villon

CASE NUMBER:  1829479

HOME AFFAIRS REFERENCE(S):           CLF2018/356310

MEMBER:Bridget Cullen

DATE:4 November 2019

PLACE OF DECISION:  Brisbane

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 04 November 2019 at 10:57am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – complying with the conditions – temporary assistance to sister as carer – timeframe for de facto residence – medical evidence from review applicant – decision under review remitted    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

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 31 July 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 applied for the visa on 16 July 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 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 because the delegate did not consider the visa applicant met the genuine temporary stay requirement.

5. The review applicant appeared before the Tribunal on 29 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ken Denton and Mrs Marilou Denton, the review applicant’s neighbours and friends.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of being her sister’s carer. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. The visa applicant applied for the visa on 16 July 2018, seeking to come to Australia to take care of her sister, the review applicant, who has some mobility issues.  The review applicant’s husband has passed away recently, and she needs some assistance.

10. The visa applicant is married, with an adopted daughter, who support her need to travel to Australia to care for her sister.  The Tribunal considers that the visa applicant has strong family ties to her home country of the Philippines that would be a strong incentive for her to return.

11. The Tribunal has before it, the following documents from Dr Felipe Londono Galarza, relating to the review applicant’s health:

    -    Letter, dated 8 October 2019, supporting the visa applicant’s coming to Australia to look after the review applicant due to her various significant health issues;

    -    Medical Certificate dated 17 October 2018, requesting that the review applicant’s sister to assist in the review applicant’s care and rehabilitation after major knee replacement surgery;

    -    Medical Certificate dated 16 February 2018, stating that the review applicant’s husband passed away in 2017, and that the review applicant was requesting the visa applicant remain in Australia to assist the review applicant; and

    -    Medical Certificate from Dr Felipe Londono dated 1 February 2017, largely containing the same information and request as the 17 October 2018 medical certificate.

12. 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)). There is no evidence before the Tribunal that the visa applicant did not comply with the conditions of her last visa, and the delegate acknowledges in the decision record that she departed Australia before the expiry of her last visa.

13. 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.

14. There is no evidence before the Tribunal suggesting that the visa applicant would not comply with the conditions of a Subclass 600 visa. 

15. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The delegate as concerned that the visa applicant was seeking to maintain “de facto” residence in Australia, as she has previously spent 354 days in Australia, from 1 April 2017 to 20 March 2018. The delegate looked at the proposed length of the visa applicant’s visit (12 months from 25 August 2018 to 25 August 2019) and concluded that the policy definition of “de facto” residence applied. 

16. “De facto residence” is considered to be more than 12 months in an 18 month period.  At the time of the delegate’s decision, it would have been correct to say that a further 12 month visit would result in the visa applicant staying more than 12 months in an 18 month period.

17. However, given the time that has now passed following the delegate’s decision and the Tribunal’s review, it is not the case that the visa applicant would contravene the definition of “de facto residence” as at the time of the Tribunal’s decision. Her last visit to Australia ended more than 19-months ago, and the Tribunal considers that the visa applicant will comply with the conditions imposed on her Subclass 600 (Visitor) visa.

18. 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

19. 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.

    Bridget Cullen
    Member