Parcell (Migration)

[2021] AATA 2203

Parcell (Migration) [2021] AATA 2203 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Edilberta Parcell

VISA APPLICANT:  Mr Gilbert Guiroy

CASE NUMBER:  1909233

HOME AFFAIRS REFERENCE(S):          BCC2019/1437636

MEMBER:Angela Cranston

DATE:1 June 2021

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 01 June 2021 at 11:01am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s mother’s partner carer would be overseas – recent compliant visits – undeclared girlfriend in the Philippines – caretaker of family property – employment – willingness to provide a security bond – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.212, 600.231

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 12 April 2019 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 21 March 2019. 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.

4.    In his application, the applicant stated that he was born in 1982 and wanted to stay for up to 12 months between 4 April 2019 and 3 April 2020 in part because the review applicant’s partner Alan would be in Spain to visit his relatives. He also stated that he had never married, lived in Cebu City, had a sister in Australia, had been the full-time carer for his father in the Philippines who had passed away on 23 December 2018 and now the review applicant needed his help as she was having health issues and her full time carer was departing for Spain which meant she would be on her own.  

5.    The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 for the following reasons:

The applicant has not indicated the presence of any family members in Philippines that will induce him to return within the validity of his visa. I therefore place no weight on the applicant’s family as incentive to return and consider his family ties to Philippines to be outweighed by the presence of his mother and sibling in Australia. On balance, therefore, the applicant’s family ties are not sufficient to demonstrate that the applicant has the means and intention to return to Philippines.
In response to the employment status of the applicant on the application for a Visitor Short Stay Visa, the applicant declared that he is unemployed. Therefore, I cannot consider employment as a factor that will induce the applicant to return to Philippines within the validity of his visa.
I note that the applicant most recently departed Australia on 25 February 2019, after a stay period of three months. I have concerns that, given the immediacy of the applicant’s recent visit to Australia, the applicant may have difficulty funding another twelve month visit to Australia. It is noted that the purpose of our visa is for tourism and visiting family members, the applicant stated that his intentions are to be a carer for his mother. Therefore, the applicant does not satisfy the Genuine Temporary Stay Requirement for the purposes of this visa.

The applicant has provided no evidence of any other significant ties to Philippines that would induce him to return home within the validity of his visa. Therefore, I give no weight to asset ownership, business ties or cultural ties as evidence that the applicant intends a genuine temporary stay in Australia and cannot consider these ties as factors that will induce the applicant to depart Australia within the validity of their visa.

After considering the information provided, I am not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.

6.    The review applicant appeared before the Tribunal on 21 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and Alan Lambert. Prior to the hearing, the Tribunal had received the following medical report concerning the review applicant dated 16 February 2019:

Mrs Edilberta Parcell age 76 11 months, suffers from residual weakness from her cerebrovascular accident in 2012. She also has osteoarthritis, hypertension, diverticulitis, angina and depression. She is unable to live alone and requires a career. Her present carer is soon to be unavailable. She wishes to have her son, Gilbert Guiroy be granted an extended visa for 12 months to remain with her as a carer until her present carer becomes available.

1. The review applicant stated that the applicant had been to Australia on four occasions and on each occasion, had returned to the Philippines. The Tribunal put to her that the Department said he did not have any significant ties in the Philippines. She stated she thought the applicant would return to the Philippines because he had a girlfriend, worked, and looked after the review applicant’s rented property. The Tribunal put to her that the Department thought he was using the tourist visa to effectively stay in Australia with her. She stated he would return. The Tribunal also put to her that it understood that in the Philippines the applicant had his brother and his girlfriend of 13 years, however this was the first time it had heard of his girlfriend. She stated she had seen his girlfriend when she herself went to the Philippines three years ago.

8.    Mr Lambert stated the review applicant had been in Australia for 27 years and had not been with her sons for long. He stated the applicant was a bachelor however he was also the executor of the review applicant’s will so needed to continue to comply with visa conditions in order to return in the future to execute the will.  He stated the applicant had looked after his father during the last years of his father’s life, they had a family farm that generated produce, that he also had an aunt and was caretaker for her property and he was licensed with Uber and had a taxi scooter. He stated the applicant had complied with previous visa tourist conditions. The Tribunal said the Department said the applicant had been using visitor visas in order to remain in Australia in order to look after the review applicant. The Tribunal also pointed to the applicant’s previous behaviour in departing Australia on 25 February 2019 and applying for another tourist visa on 21 March 2019.  Mr Lambert stated the review applicant and applicant had only been together in Australia for 20 months. The Tribunal put to him that since 2015, the applicant had arrived in Australia on 22 April 2015 and departed on 19 October 2015. He had again arrived on 13 October 2016 and departed on 11 October 2017. He had again arrived on 29 November 2018 and departed on 25 February 2019 and had immediately applied for a visitor visa to return. Mr Lambert stated the word ‘carer’ had been taken out of context and did not mean a job but an attitude and the applicant simply wanted to spend time with the review applicant .   

9.    The Tribunal then spoke to the applicant who stated he wanted to visit the review applicant who had underlying health issues. He stated he would return to the Philippines because he had worked with a company for over a hear and a half, looked after the review applicant’s property, and he was also in a 13 year relationship and they planned to some day marry. The Tribunal put to the applicant that he had spent a lot of time in Australia in the last three years, that is he had been in Australia for a year between October 2016 and October 2017, had again returned for 3 months in 2018 and had then immediately reapplied to return. He stated that was because Mr Lambert who was the review applicant’s carer was going to Spain and he intended to look after the review applicant until Mr Lambert returned.

1. The Tribunal talked about the bond and the review applicant stated that she was willing to provide a bond up to $15 000.   

2. Movement records indicate the applicant arrived in Australia on 2 December 2011 and departed on 12 January 2012. He again arrived on 22 April 2015 and departed on 19 October 2015. He again arrived on 13 October 2016 and departed on 11 October 2017. He again arrived on 29 November 2018 and departed on 25 February 2019. 

3. The applicant’s brother, Ludwig, arrived in Australia on 18 September 2011 and departed on 14 December 2011.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant, his mother. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

3. 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)).

4. 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.

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

6. There is no evidence before the Tribunal that the applicant has previously worked, studied or overstayed in Australia.

7. The Tribunal has considered the personal circumstances of the applicant who is a citizen of the Philippines. The applicant is nearly 39 years old and in a long-term relationship. He states that he works as a food and parcel delivery driver, and has a brother in the Philippines. He is also the caretaker of family property. These are reasons why, in the Tribunal’s view, he would return to the Philippines.

8. However, he also has the review applicant, his mother, and his sister in Australia. He has also had a lengthy visit to Australia between October 2016 and October 2017 and he again entered Australia on 29 November 2018 and remained for three months until 25 February 2019. When he departed Australia in February 2019, he immediately lodged this visitor visa application to return to Australia on 21 March 2019.

9. Given that the applicant has already spent time in Australia and immediately lodged another visitor visa application when he departed Australia in February 2019, the Tribunal was concerned that the applicant was using the visitor visa in order to continue to be with and care for the review applicant and as discussed with the parties, if that was their intention, then the visitor visa may not be their most appropriate option. In response to those concerns, the review applicant and Mr Lambert indicated that Mr Lambert is the review applicant’s full-time carer and the Tribunal accepts this is the case.

23.   Weighing up all of the relevant matters, the applicant's current personal circumstances suggest there are current factors including work and relationships encouraging the applicant to return to the Philippines. There are, however significant pull factors encouraging him to remain in Australia.

1. Be that as it may, the Tribunal accepts that the parties are credible and it is the applicant's and review applicant's intention for the applicant to temporarily visit Australia. In reaching this conclusion, the Tribunal notes that not only the applicant, but members of his family have visited and departed Australia within the period of their tourist visa. Accordingly, in the Tribunal's view, this family's compliance with migration laws is impressive and there is nothing in the applicant's past migration history or in the past migration history of any of his family to suggest that they have done anything other than what they say they will do. The Tribunal has also considered the review applicant's understanding of the potential adverse consequences on future visa applications for the applicant if the applicant does not comply with any of the visa conditions including remaining after the end of any permitted stay. The length of the permitted stay is to be determined by the Department.

2. The potential loss of any security bond if one is imposed by the Department would also provide additional incentives for his compliance.

3. The Tribunal therefore finds that the applicant genuinely intends to visit Australia and will comply with visa conditions.

4. 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

1. 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.

Angela Cranston
Member