Quimis Pillasagua (Migration)

[2024] AATA 181

Quimis Pillasagua (Migration) [2024] AATA 181 (10 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Nurys Yomar Quimis Pillasagua

VISA APPLICANTS:  Mr Willian Rosendo Quimis Pillasagua
Mrs Shirley Lilibeth Huacon Cedeno
Miss Brithany Franchesca Quimis Huacon 
Master Alina Itzel Quimis Huacon 
Master Samuel Israel Quimis Huacon 

CASE NUMBER:  2319522

HOME AFFAIRS REFERENCES:             BCC2023/5156418, BCC20235156418

MEMBER:Paul Windsor

DATE:10 January 2024

PLACE OF DECISION:  Melbourne

DECISIONS:  In relation to Mr Willian Rosendo Quimis Pillasagua, 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.

The Tribunal does not have jurisdiction in relation to Mrs Shirley Lilibeth Huacon Cedeno,
Miss Brithany Franchesca Quimis Huacon, 
Master Alina Itzel Quimis Huacon and 
Master Samuel Israel Quimis Huacon.

Statement made on 10 January 2024 at 3:22 pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant and compliance with conditions – incentives to depart or remain – business, house and cars – country information – political/economic conditions, demonstrations and crime – forthcoming and genuine evidence – wife and children not intending to visit specified relative – sister-in-law and aunt not specified for this subclass – no jurisdiction to review their visa refusals – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(7)(b)
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 11 October 2023 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 7 September 2023. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 (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. The delegate refused to grant the visas on the basis that the visa applicants did not meet cl 600.211 because she was not satisfied that the visa applicants genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted. In reaching this conclusion, the delegate indicated she was not satisfied the applicants’ personal circumstances provided an incentive to depart Australia at the end of their authorised temporary stay which outweighed incentives to remain in Australia.

5. The review applicant appeared before the Tribunal on 10 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Willian Rosendo Quimis Pillasagua, who is the review applicant's brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

   Jurisdiction

6. In the hearing invitation the Tribunal advised that it is of the view that it does not appear to have jurisdiction to review the decisions to refuse Visitor visas in relation to Mrs Shirley Lilibeth Huacon Cedeno (who is the spouse of Mr Quimis Pillasagua), and Miss Brithany Franchesca Quimis Huacon, Miss Alina Itzel Quimis Huacon, and Master Samuel Israel Quimis Huacon (who are the children of Mr Quimis Pillasagua and Mrs Huacon Cedeno). This is because they did not intend to visit an Australian citizen or Australian permanent resident who is their parent, spouse, de facto partner, child, brother or sister, as required by section 338(7)(b) of the Migration Act 1958 (Cth).

7. The Tribunal discussed this matter with the review applicant and Mr Quimis Pillasagua at the hearing. They indicated they accepted this is the case. Accordingly, the Tribunal finds it has no jurisdiction in the matters of Mrs Shirley Lilibeth Huacon Cedeno, Miss Brithany Franchesca Quimis Huacon, Miss Alina Itzel Quimis Huacon, and Master Samuel Israel Quimis Huacon.

8. The Tribunal has jurisdiction in the case of Mr Quimis Pillasagua because he is the review applicant’s brother. For the following reasons, the Tribunal has concluded that his matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister in Australia and attending her wedding ceremony on 14 February 2024. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

11. 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)).

12. As the visa applicant has never previously held an Australia visa, this factor is not relevant in his case. He indicated he has never travelled outside of Ecuador previously.

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 would be subject are as follows (cl 600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

14. The visa applicant is a 38 year old married man from Guayaquil in Guayas province, Ecuador. He has three children aged 13, 6 and 5 years. He also has his parents and a sister living in Ecuador. Written evidence has been provided indicating that he has owned and managed a restaurant, La Riviera, located in nearby Samborondon, since April 2017. He also provided evidence of regular income and a bank balance in excess of USD 27,000. At the hearing he indicated that the restaurant seats 150 people and generates a profit of approximately USD 3,000 per month. He also indicated that he owns his home and has two cars.

15. The review applicant indicated that she is five months pregnant and is not able to travel to Ecuador for her wedding. She indicated that she had wished for her parents and her brother to travel to Australia for her marriage ceremony along with a niece and nephew (so they could be part of the bridal party). Her father, however, has developed health issues and is unable to take the long flight to Australia, so he and her mother (as well as the children) will not be attending her wedding. She has a very strong desire that her brother be able to attend. The review applicant indicated that, while she and her partner will be providing accommodation and other support for her brother during his proposed stay, he has the financial capacity to meet some of the costs. The Tribunal accepts this is the case.

16. Considering the available evidence, the Tribunal is satisfied that the visa applicant wishes to come to Australia primarily to attend his sister’s wedding ceremony. The Tribunal is satisfied he would not breach conditions 8101 or 8201, if granted the visa.

17. The key issue in this matter is whether the visa applicant, if granted the visa, would seek to remain in Australia permanently or beyond the temporary stay period authorised by the visa. While the Tribunal is satisfied that the visa applicant has strong business, economic and personal ties to Ecuador, particularly given his spouse and children will not be travelling to Australia with him, the Tribunal has also considered other relevant matters (cl 600.211(c)). In this regard, the Tribunal discussed with the visa and review applicants at the hearing the current US Government Travel Advisory for Ecuador, updated on 22 June 2023.[1] This advises that travellers should exercise increased caution due to civil unrest, crime and kidnapping. The country summary indicates that crime is a widespread problem in Ecuador. Violent crime, such as murder, assault, kidnapping and armed robbery is prevalent and widespread. The rate of violent crime is significantly higher in areas where transnational criminal organisations are concentrated. The report also comments that demonstrations occur frequently throughput the country, usually motivated by political and/or economic factors. Demonstrators routinely block local roads and major highways, often without prior notice. Past demonstrations have varied in duration, with some extending for several days or weeks. Blocked roads may significantly reduce access to public transportation, health services, and airports and may disrupt travel both within and between cities. In relation to the visa applicant’s home city, Guayaquil, the report recommends that travellers reconsider travel to the area north of Portete de Tarqui Avenue and do not travel to the area south of Portete de Tarqui Avenue due to crime. The Tribunal commented that the current security environment in Ecuador may provide an incentive for the visa applicant to not wish to return there.

    [1] Ecuador Travel Advisory (state.gov)

18. The review applicant acknowledged that the law and order situation in Ecuador has declined somewhat in recent times, commenting that the government had been lax in allowing people from overseas with criminal records to enter the country. She added that most of the people are kind and hardworking. The visa applicant commented that he had not personally experienced the problems described in the travel advisory and, while commenting that it was not an issue for him, thought the problems were more of an issue in other areas.

19. The Tribunal found the review and visa applicants to be forthcoming and genuine in their evidence. Considering the available evidence and notwithstanding the security issues in some parts of Ecuador currently, the Tribunal finds that the visa applicant has significant financial, employment and personal ties to Ecuador and is satisfied he will depart Australia prior to the expiry of the visa, if granted.

20. For the above reasons the Tribunal is satisfied that visa applicant Mr Willian Rosendo Quimis Pillasagua genuinely intend 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.

    DECISIONS

21. In relation to Mr Willian Rosendo Quimis Pillasagua, 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.

22. The Tribunal does not have jurisdiction in relation to Mrs Shirley Lilibeth Huacon Cedeno,

    
    

    Miss Brithany Franchesca Quimis Huacon, Master Alina Itzel Quimis Huacon and 

    
    

    Master Samuel Israel Quimis Huacon.

    Paul Windsor
    Member