Parry (Migration)

[2018] AATA 1689

Parry (Migration) [2018] AATA 1689 (19 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Marcy Parry

VISA APPLICANT:  Miss Jessica Tacastacas Aclao

CASE NUMBER:  1716400

DIBP REFERENCE(S):  BCC2017/1911616

MEMBER:Ian Berry

DATE:19 April 2018

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:

● Clause 600.211 of Schedule 2 to the Regulations.

Statement made on 19 April 2018 at 3:58pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Whether the applicant genuinely intends to stay in Australia temporarily – Compelling reasons for staying in Australia – Significant ties to home country – Ties to home country outweigh reasons for staying in Australia – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 28 June 2017 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 26 May 2017. The delegate refused to grant the visa on the basis the visa applicant made a valid application for a Visitor (Sponsored Family) visa. The delegate was not satisfied the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted under clause 600.211 of the Schedule 2 of the Regulations.

3. The review applicant and her husband appeared before the Tribunal on 19 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant and her husband.  The review applicant was represented by her migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, taking into account whether the visa applicant has complied substantially with the conditions of the last substantive Visa or subsequent bridging Visa; whether the visa applicant intends to comply with the conditions of the visa if granted; and any other relevant matter.

6. The visa applicant is the niece of the review applicant.  She is the daughter of the review applicant’s sister.  Both the visa applicant and her mother continue to reside in the Philippines.

7. In 1993 the review applicant married Mr Parry and by the union have one child who is now aged 12 years.  There is some history of the review applicant travelling to and from the Philippines for reasonably regular reunions.  It is understandable as the review applicant explained to the Tribunal she had 10 siblings, though unfortunately 2 sisters and one brother are deceased.  Without an exact calculation, an estimate of the nephews and nieces in the extended family is around 20, of which the visa applicant is one.

8. The review applicant married a World War II veteran now aged 94 years. They share their household with their young daughter.  They have a modest income being a pension from the Department of Veterans Affairs and have modest savings.  They own their own home and have a motor vehicle.

9. Mr Parry seems to be in relatively good health for a person of his age, though the reports indicate that he is hospitalised regularly and has had heart difficulties. The review applicant says she looks after him as his carer on a full-time basis.  Incidentally, he was taken from hospital to be at the tribunal’s hearing.  He gave evidence though the substantial part relating to the visa applicant was given by the review applicant.

10. The visa applicant and the review applicant have a special relationship with each other brought about by the trips to the Philippines and of the devotion of the visa applicant in looking after the review applicant’s father who had been ill. He passed away about three years ago. The visa applicant delayed her career and looking after her grandfather until he succumbed to his illnesses. The review applicant financially assisted her niece in her nursing degree, of which she has about six months to complete.

11. The review applicant spoke of her niece as having a strong relationship with her Aunts and Uncles, nephews and nieces all of whom live in the Philippines. She delayed her nursing career to care for her grandfather and will, subject to the availability of funds, resume her career.  In illustrating the special relationship between the review applicant and the visa applicant, the review applicant said she was able to pay for her nursing tuition.

12. Since the lodgement of the application for review medical reports have been received by the Tribunal illustrating the poor health being suffered by the review applicant in part from the inability to travel to the Philippines because of her full time commitment to her husband.  It is openly stated in the visa application of the niece coming to Australia in part, not only to see her auntie but also to assist in caring for the review applicant’s husband.

13. The medical reports received by the Tribunal confirm the review applicant suffering from [particular medical conditions] has been mentioned which may be related to a motor vehicle accident.  Mr Parry suffers heart condition complaints which are not unexpected of a man aged 94 years.

14. The Tribunal put to the review applicant its concern, without prejudging the matter, of the visa applicant coming to Australia and then seeking to stay and because of the deteriorating condition of review applicant’s husband, and the poor [health] of the review applicant, she may attempt to stay in Australia by applying for a visa because of the health factors of the review applicant and her husband. The review applicant was given time to consider her response. After a short adjournment with her migration agent, the review applicant stated she understands the seriousness of the visa applicant complying with the conditions of a visa granted to her. She believes the visa applicant will abide by those conditions.

15. Evidence has been provided by the visa applicant as to her circumstances in the Philippines.  While she is an undergraduate in nursing, expecting to finish in 6 months, she works part-time casual and has savings. The visa applicant lives close to her mother and other relatives, and has strong relationship with her extended family including the review applicant. The review applicant stated they (both herself and her husband) have a strong commitment to paying for all her expenses including airfares.

16. The Tribunal is satisfied the visa applicant has an intention to genuinely stay temporarily in Australia for the period to which a visa application refers.  As about 4 months.

    DECISION

17. 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:

    ● Clause 600.211 of Schedule 2 to the Regulations

    Ian Berry
    Member