Opena (Migration)

[2024] AATA 3090

Opena (Migration) [2024] AATA 3090 (18 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Alexis Opena

VISA APPLICANT:  Mr Patrick Opena

CASE NUMBER:  2308135

HOME AFFAIRS REFERENCE(S):          BCC2023/2882691

MEMBER:Mara Moustafine

DATE:18 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 18 July 2024 at 5:50pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit brother – unemployed and has no regular income or evidence of savings – not satisfied that the visa applicant has a partner or a baby in home country – no financial incentives to return home – Tribunal is not satisfised visa applicant genuinely intends to stay temporarily in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

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 7 June 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 24 May 2023. 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 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.

   Evidence before the Department

4. Based on his visa application, the visa applicant is a 27-year-old citizen of the Philippines, born in Compostela, Davao de Oro province, where he is currently living. He has never been married and has no family members in the Philippines. He is unemployed but previously worked as an accounting officer. He is seeking the visa for the purpose of a family visit of up to 6 months to visit his brother, whom he described as his ‘remaining relative’ and to be present for the birthday of his niece. He will not undertake a course of study in Australia. He has previously visited Australia. His brother and sister-in-law will cover all expenses related to his travel and visit and provide accommodation.

5. Based on his sponsorship form, the review applicant is the visa applicant’s brother, born in the Philippines in October 1991. He is an Australian permanent resident (copy of permanent residency grant number provided) and has been employed as a qualified beef boner by JBS Australia in the Riverina, NSW for over 2 years. He confirmed his readiness to provide a security bond for his brother if required.

6. Documents submitted to the Department in support of the visa application included scanned copies of the biodata pages of the visa applicant’s Philippines passport, including pages with exit/entry stamps, his national identity card, birth certificates of both visa and review applicants indicating their shared parentage; and the review applicant’s payslips from JBS Australia dating from April and May 2023.

7. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because she was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of the visa grant. In particular, the delegate was concerned that the visa applicant had not provided any evidence of savings, ongoing salary or pensions or other streams of revenue and, as he was unemployed, he had no regular income. Overall, she found that the visa applicant had limited personal and financial incentives to return home at the end of his proposed stay.

   Evidence before the Tribunal

8. On 9 June 2023, the review applicant applied to the Tribunal for a review of the delegate’s decision, a copy of which he provided to the Tribunal for the purposes of the review.

9. On 10 June 2023, the review applicant submitted a letter contesting the Department’s decision in refusing his brother’s a Visitor visa, as well as supporting documents. The letter stated that he wanted the visa applicant, who was his only brother and near family member, to spend time with him as their father passed away in November 2018 and their mother died in December 2022 and to join in celebrating his daughter’s birthday. He claimed there was no option in the application form to explain the circumstances of the visa applicant’s unemployment status and his family would cover the full cost of his travel and stay in Australia. The visa applicant’s visit would ‘surely be temporary’ because he was currently enrolled and had to manage the rice field inherited from their deceased parents.

10. In addition to a number of supporting documents previously provided, including his payslip from JBS Australia dating from May-June 2023, the review applicant provided his marriage certificate, a payslip from JBS Australia for his wife dating from April 2023, the visa applicant’s certificate of enrolment in an unspecified IELTS course at Bigstep dated 3 May 2023; and a certificate of transfer of land title to the visa applicant’s mother in 1987.

    The Hearing

11. The review applicant appeared before the Tribunal by MS Teams videoconference on 18 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from the Philippines.

12. At the hearing, the review applicant told the Tribunal that he was an Australian permanent resident on the basis of an Employer Nomination Scheme visa. Since December 2023 he has been living in Western Australia with his wife and daughter and working for the WA Meat company. His wife was working at the Kmart warehouse. The live in a rented three bedroom house. He has savings of $2-3,000 in his bank account.

13. The review applicant said he invited the visa applicant, his only brother, to visit him for 1-2 months because he has been depressed and stopped working since their mother died in December 2022. He wanted to divert his brother’s attention from his depression by exploring Australia and bonding with his brother. He confirmed that his brother previously visited Australia for 3 weeks in February 2023. The review applicant said his brother was not married but had a girlfriend who had given birth to their daughter a month ago. His brother had been working part time as an online bookkeeper since January 2024 and earned enough to support his family but he was not sure how much and did not know what savings he had.

14. The review applicant said he would cover all costs related to the visit. Asked how he would be able to afford this given his limited savings, the review applicant said he had recently suffered some financial hardship and had sent money to his brother to pay for his partner’s caesarean operation. The review applicant said he wanted his brother to visit in the next couple of months. Asked why his brother would leave his partner with such a young baby, the review applicant said he might have to reduce his stay in Australia to 3 weeks. He said his brother’s incentives to return to the Philippines after his visit were his rice farm from which he derived an annual income of around PHP 50,000 (around A$1300) and his family.

15. In his evidence the visa applicant told the Tribunal that he wished to visit his brother as he was his only relative after his mother died in 2022 and to see Australia, although he confirmed that he had visited Australia in March 2023. He said he was a freelance accountant but not currently employed as he had ‘zero clients’ and was relying on income from his small rice farm, earning around PHP 60,000 per year. Although he was not married he had a partner of 3 years, who had given birth to their baby in June 2024. He had savings of PHP 3,000 in his bank account. He wished to visit for 1-2 months in August-September 2024 to see his brother’s new place in Western Australia. His incentives to return were to find work, as well as his family and rice farm. His partner would go back to live with her family while he was away.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. In the present case, the visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

19. 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)).

20. According to Department records, the visa applicant previously visited Australia on a Visitor visa in February 2023 and departed within the timeframe of his visa. There is no evidence before the Tribunal of non-compliance with conditions of his previously held visa on the part of the review applicant.

21. 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.

22. The Tribunal has considered the written and oral evidence of the review and visa applicants, as well as all the documentary evidence submitted in support of the application.

23. The applicant indicated in his application form that he would not work while in Australia and that his brother would cover all costs related to his visit. However, by his own evidence, the visa applicant is unemployed and neither he nor his brother, the review applicant, have provided any evidence of savings or a regular income. Under the circumstances, the Tribunal cannot rule out that the visa applicant may seek to work in Australia and is, therefore, not satisfied that he will comply with condition 8101.

24. The applicant indicated in his application form that he would not study in Australia. As Visitor visa holders are no longer able to apply for Student visas while onshore since 1 July 2024, the Tribunal is satisfied that the visa applicant will comply with condition 8201.

25. Condition 8503 refers to entitlement and is not a condition that involves compliance.

26. The visa applicant’s intention to comply with condition 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

27. The visa applicant claimed that his incentives for returning to the Philippines after visiting Australia were his partner of three years and their new-born baby, his rice farm and his need to find work. The Tribunal is concerned that, the visa applicant’s alleged partner has never been mentioned until the hearing, including in the letter from the review applicant to the Tribunal of 10 June 2023, in which the only reasons given as to why his brother’s visit to Australia would ‘surely be temporary’ were his then enrolment and his need to manage the rice field inherited from their deceased parents (paragraph 9 refers). Moreover, in his application form, the review applicant in Australia was described as the visa applicant’s ‘remaining relative.’ The Tribunal considers the newly introduced evidence about a partner to be opportunistic. It not satisfied that the visa applicant has a partner or a baby in the Philippines. As his parents are deceased, his closest family ties are to his brother and his family in Australia.

28. The Tribunal has had regard to the certificate of transfer of land title to the visa applicant’s mother in 1987 but does not consider it to be evidence of any rice farm which the visa applicant is allegedly managing. In any case, the Tribunal does not consider that, if it were true that the visa applicant has such a rice farm, which it does not believe, the claimed annual income of PHP 50,000-60,000 would provide incentive for him to return home. Nor does the Tribunal believe that his need to find employment is a credible incentive for the visa applicant to return to the Philippines.

29. In view of the above, the Tribunal is not satisfied that the visa applicant has any family ties in the Philippines that would serve as an incentive for him to return there and shares the Department’s concern that, as he is unemployed and has no regular income or evidence of savings, the visa applicant has no financial incentives to return home at the end of his proposed stay.

30. Having considered all the evidence before it, the Tribunal is not satisfied that the visa applicant has strong incentives to return to the Philippines within the timeframe of his Visitor visa, if granted. It is not satisfied that he will comply with Condition 8531.

31. For the above reasons, 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 and finds that the requirements of cl 600.211 are not met.

    DECISION

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

    Mara Moustafine
    Member