Palu (Migration)

[2020] AATA 4579

Palu (Migration) [2020] AATA 4579 (30 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Kesaia Pua Teu-Ki-Kenani Palu

VISA APPLICANT:  Mr Hosea Tu'amoheloa Saumaki

CASE NUMBER:  2004152

HOME AFFAIRS REFERENCE(S):          BCC2020/172421

MEMBER:Moira Brophy

DATE:30 October 2020

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.

Statement made on 30 October 2020 at 2:00pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to remain or return – review applicant’s difficult pregnancy, newborn baby and physical and mental health – applicant’s employment in another country – previous compliant travel to Australia and other countries – intention to apply for partner visa – consequences of non-compliance for employment and partner visa application – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231, Schedule 8, conditions 8503, 8531

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 February 2020 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 25 January 2020. 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 He was not satisfied the applicant genuinely intended to visit Australia on a temporary basis.  

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant Miss Kesaia Pua Teu-Ki-Kenani Palu gave evidence by way of telephone to the Tribunal on 14 October 2020. The Tribunal also received oral evidence from the visa applicant Mr Hosea Tu'amoheloa Saumaki.

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

   BACKGROUND

8. The visa applicant is a 28-year-old who was born in Tonga. He is currently residing in Japan where he is in full time employment playing professional football. He is engaged to the review applicant and they are the parents of a daughter who was born on…...  His parents and siblings reside in Tonga. In his application for a Tourist visa, he requested a visa up to 6 months for a family visit, he is in full time employment as a professional sportsman and his travel will be self-funded from his employment income. The visa applicant has lived in Japan for the past six years having attended university there. The visa applicant previously has visited Australia on two occasions. He has travelled here with his employer and played football here.

9. The review applicant is the fiancé of the visa applicant. She is a New Zealand citizen and is in Australia on a Special Category visa (subclass 444). She arrived in Australia on 11 April 2000. She is currently on maternity leave from her employment. She is living with her parents and three brothers. She also has six sisters who are also living in Sydney. She gave birth to her daughter in May 2020. Both the review applicant and the visa applicant are listed on the birth certificate as the parents of the baby.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 his fiancé and child. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.231.

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)).

13. At the time of hearing the visa applicant told the Tribunal that he had previously travelled to South Africa, Argentine, New Zealand and Australia. He had always travelled within his permitted visa time.

14. An examination of his travel record shows he has previously been granted short term visas to enter Australia, most recently in January 2019. He entered Australia on three occasions while that visa was current. There was no evidence of his not complying with the conditions of the visa he had been granted.

15. 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.

16. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given by the review applicant as to why the visa applicant was seeking to come to Australia to visit his partner and daughter. The review applicant said she had been in Australia for ten years now. She met the visa applicant in Tonga, and they commenced a relationship. She had now given birth to their first child. Her pregnancy has been complicated by her having a vitamin deficiency. After the visa applicant was refused his application for a Visitor visa to be present for the birth of their child she had suffered from depression and received regular counselling. It had been a difficult period when the baby arrived. She wanted the support of her partner during the post-partum period. The Tribunal accepts it is the intention of the visa applicant to visit his fiancé and his daughter. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

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

18. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The review applicant gave evidence that she last saw her fiancé in September 2019 when she visited him in Tonga. It was during this trip their child was conceived. She stated she wanted to spend time with her fiancé and for them to spend the time as a family with their newborn child.

19. The review applicant gave evidence that the visa applicant wants to come to Australia for one to two months. The visa applicant told the Tribunal that he would stay for one month at the longest. He said he had arranged a period of absence from his work.  He had provided a letter from his employer to that effect. The parties intended to lodge an application for a partner visa when the visa applicant had completed his contractual obligations in Japan. He had been there for six years and he hoped to obtain a further contract when his current contract expired. The visa applicant and the review applicant were both acutely aware that any non-compliance would adversely impact on that application. The review applicant said he needs to stay in Japan in the short term as he was earning a good income from playing football. He was not going to be able to earn a similar income in any other country. The review applicant is dependent on his income to support herself and her daughter. She was not entitled to paid maternity leave. The review applicant was conscious of his caring responsibilities to them and conscious that any visa noncompliance would impact on him as a professional footballer as he would not be able to travel with his employer.

20. The Tribunal asked the review applicant what incentives the visa applicant has to return to Japan at the end of his permitted stay in Australia.

21. The review applicant responded that his incentives to return are his work. They were both dependent on his income from that work. She said that in addition to his work responsibilities he was not likely to do anything that would jeopardize any future partner application. When asked what would happen if he comes here, changes his mind and does not want to return to Japan, she responded that as a professional sportsman he well understood the ramifications of not complying with a country’s visa requirements.  He would return to his home as he understood that was what the law required of him.

22. The Tribunal asked the visa applicant what incentives he has to return to Japan at the end of his permitted stay in Australia. He responded that his biggest incentive to return is his work. When asked what would happen if he came here and then changed his mind and decided to stay here, he responded that he has not even thought about that. He stated that he has too much to lose if he does not comply. He stated that he wants to visit his fiancé and newborn child, but he does not want to risk their chance of being together in the future. He was also conscious of his obligations to his work in Japan. He said his employer had been good to him and supportive of him. He did not want to abuse that support.

23. The Tribunal has considered the evidence given by the review applicant. She has worked very hard to make her life in Australia since she came here in 2010, she has married and is now starting her family. She understandably wants to share this time with her partner and the father of her child. The Tribunal also appreciates her pregnancy has been complicated and she wants the support of her partner. The review applicant stated that the visa applicant is law abiding and that all the members of his family are also law abiding. They were very aware that a failure to abide by any visa conditions imposed would have ramifications for any presently undetermined applications and any future visa applications they may make.

    Findings

24. Having considered all the evidence, the Tribunal is of the view that the visa applicant and the review applicant are credible witnesses. The Tribunal accepts that the visa applicant has a deep commitment to his fiancé and child, he is acutely aware of his need to provide for them financially and that this would provide a strong incentive for him to abide by the conditions of any visa granted as he could not risk his employment contract. The Tribunal accepts that he has the financial resources to pay for his trip to Australia. The Tribunal accepts that he does not intend to work, study or undertake any training in Australia.

25. The Tribunal accepts that the review applicant will provide the visa applicant with accommodation and food. The Tribunal accepts that it is important to the review applicant that her partner is able to visit her in Australia and that she will ensure that the visa applicant complies with the conditions of his visa so as not to jeopardize prospects of obtaining any visas in the future. The Tribunal is of the view that this would also provide a further incentive for the visa applicant to comply with the conditions of his visa.

26. The Tribunal accepts that the visa applicant's incentives to return to Japan outweigh his incentives to remain in Australia after the end of his permitted stay. The Tribunal accepts that he intends complying with the conditions of his visa.

27. 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

28. 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.

    Moira Brophy
    Member