Paton (Migration)

[2018] AATA 5224

Paton (Migration) [2018] AATA 5224 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mark John Paton

VISA APPLICANT:  Miss Phatnarin Hakan

CASE NUMBER:  1829975

DIBP REFERENCE(S):  BCC2018/3672546

MEMBER:Nicole Burns

DATE:14 December 2018

PLACE OF DECISION:  Melbourne

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 14 December 2018 at 3:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – Tourist stream – review applicant’s relation to visa applicant – genuine temporary entrant – de facto relationship established – visiting review applicant’s children in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5CB(2), 65, 338(7)(b), 347(2)(c)

Migration Regulations 1994, Schedule 2, cl 600.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 12 October 2018, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 12 October 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. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211.

4. On 14 December 2018 the review applicant gave oral evidence to the Tribunal via the telephone from the United Kingdom, where he is currently travelling to for work.  The Tribunal also received oral evidence from the visa applicant – who is the review applicant’s partner – via the telephone from Thailand.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

   Jurisdiction issue

5. A preliminary question of jurisdiction arose in this case in relation to whether the review applicant had standing under section 347(2) of the Act which specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(7), an application for review may only be made by the relative referred to in the subsection concerned: s.347(2)(c). In this case, the relative must be a parent, spouse, de facto partner, child, brother or sister of the applicant: s.338(7)(b). 

6. On 16 October 2018 the Tribunal wrote to the review applicant inviting his comments on its preliminary view that the review application was not valid because the applicant was not a ‘relative’ as defined in the relevant legislation.  On 17 October 2018 the Tribunal received an email from the review applicant who states that he is in a relationship with the visa applicant since May (2018); that she spends most of her time living with him in Kuala Lumpur where he lives and works; and that he thinks it could be argued that they are in a de facto relationship in order to be entitled to the review.  These submissions were also made by the review applicant in a telephone conversation with a Tribunal officer on 18 October 2018.  

7. On 11 December 2018 the Tribunal sent another letter to the review applicant inviting him to provide evidence demonstrating that he and the visa applicant are de facto partners.  In response the review applicant sent an email to the Tribunal dated 12 December 2018 and provided a number of supporting documents.  In his email the review applicant states that he met the visa applicant in Krabi, Thailand on 9 May 2018; on 22 May 2018 he invited her to visit him in Kuala Lumpur (where he lives) for the first time; since then she has spent most of the time in Kuala Lumpur living with him; and she returns to stay with her family in Thailand when he travels outside Malaysia for work.  He states also that they have gone on holiday together to the Philippines in June (2018) and to Indonesia for a long weekend in November (2018) where they met up with friends of the review applicant’s from Australia. He also states that his brother – who lives in Queensland – visited them in Kuala Lumpur and they all travelled to the visa applicant’s home town of Krabi together.  The review applicant also stated that recently he became engaged with the visa applicant and provided a photograph of her displaying her engagement ring.  Other photographs showing the couple in various locations including with friends and family was also provided as well as documents evidencing their various travel together. 

8. At hearing the review applicant gave oral evidence to the Tribunal about the history and development of his relationship with the visa applicant which was consistent with his written claims to the Tribunal as set out above, as well as the visa applicant’s oral evidence to the Tribunal.  He said the visa applicant has her own hairdressing business in Krabi and owns her car and a house.  However as she spends a lot of time with him in Kuala Lumpur she only works casually and he gives her a monthly allowance.  The review applicant said he has met the visa applicant’s mother and other family members in Thailand and she has met his brother.  She knows about his history and family circumstances: in particular that he has been married twice before and has three adult children who live in Australia.  The Tribunal accepts his evidence that they have been in a relationship to the exclusion of all others since May 2018; that the visa applicant lives with him on and off on a regular basis in Kuala Lumpur and returns to her family in Thailand when he travels to work; that the review applicant helps financially support the visa applicant; and that they have recently become engaged.  

9. Given these findings and having regard to the definition of de facto partner as set out in s.5CB(2) of the Act (attached), the Tribunal is satisfied that the applicants are and were in a de facto relationship at the time of the visa application and when the review application was lodged.  Therefore the Tribunal is satisfied that at the time of the visa application or at the time the review application was lodged with the Tribunal the review applicant was the de facto partner of the visa applicant for the purposes of s.338(7)(b). Accordingly the Tribunal is satisfied that the review applicant is the relative of the visa applicant and therefore he has standing to apply for a review to the Tribunal.  For these reasons the Tribunal is satisfied it has jurisdiction to review the case.

   Genuine intention to visit – cl.600.211

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 her partner’s adult children in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)).  Given the visa applicant has never visited Australia before, this subclause does not apply.

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

15. The review applicant told the Tribunal at hearing that his partner applied for the visa with the intention of travelling to Australia with him to spend around a week or two with his three adult children over Christmas.  They then planned to fly to New Zealand with friends for a holiday, then to the Cook Islands, before returning to Kuala Lumpur where the review applicant resides.  The review applicant said he is the chief operating officer for an oil and gas company and has the financial means to pay for the visit.  Having seen copies of recent tax information provided, the Tribunal accepts that is the case.

16. According to the review applicant’s oral evidence to the Tribunal the visa applicant is 41, owns and operates a hairdressing and massage business in Krabi, southern Thailand with a business partner, and when not in Kuala Lumpur with him, lives in a house she owns around an hour away, where her mother, grandmother and brother also reside.  She spends her time living with the review applicant in Kuala Lumpur and returns to Krabi when he has to travel for work.  She only works occasionally now and receives financial support from the review applicant.  The Tribunal accepts his evidence in this respect, which was consistent with eh visa applicant’s evidence.  Although she has reduced the amount of time she spends in Thailand and her work commitments, nonetheless the Tribunal considers her family and work ties to Thailand would act as a significant incentive for her to return there.

17. The review applicant told the Tribunal he came to Australia in 1989 and has been an Australian citizen since 1992.  He has worked as the chief operating officer of an oil and gas company based in Malaysia since March 2013, which requires him to travel internationally.  His three adult children reside in Australia, whom he visits regularly.  There is nothing before the Tribunal to indicate that the review applicant has an adverse immigration history and it appears he has worked hard to establish his life in Australia and abroad.  It is of the view he will ensure the visa applicant abides by the visa conditions of any visitor visa that may be granted. 

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.

    Nicole Burns

    Member

    Attachment - Section 5CB De facto partner

    [5CB] (1)      For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

    De facto relationship
    [5CB] (2)      For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

    (a)      they have a mutual commitment to a shared life to the exclusion of all others; and

    (b)      the relationship between them is genuine and continuing; and

    (c)      they:

    (i)      live together; or
    (ii)      do not live separately and apart on a permanent basis; and

    (d)      they are not related by family (see subsection (4)).

    [5CB] (3)      The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

    Definition
    [5CB] (4)      For the purposes of paragraph (2)(d), 2 persons are related by family if:

    (a)      one is the child (including an adopted child) of the other; or
    (b)      one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
    (c)      they have a parent in common (who may be an adoptive parent of either or both of them).

    For this purpose, disregard whether an adoption is declared void or has ceased to have effect.