Ratakele (Migration)

[2020] AATA 2726

Ratakele (Migration) [2020] AATA 2726 (29 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Temalesi Wati Ratakele

CASE NUMBER:  1820720

HOME AFFAIRS REFERENCE(S):          BCC2018/3733225

MEMBER:Tania Flood

DATE:29 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 29 May 2020 at 11:28am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – adequate means of support – support provided by family members – intention to stay in Australia – not a genuine temporary entrant – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, cls 600.211, 600.212

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 29 June 2018 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 12 June 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 and cl.600.212, which requires the visa applicant to have adequate means to support himself or herself or access to adequate means to support himself or herself.

4. The visa was refused on the basis that the visa applicant did not meet cl.600.212 because the delegate was not satisfied that she has adequate means or access to adequate means to support herself in Australia.

5. With her prior approval, the applicant appeared before the Tribunal on 19 May 2020 via telephone to give evidence and present arguments. The Tribunal also received oral evidence from her aunt.  

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

7. Clause 600.211 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.

8. Clause 600.212 requires the Tribunal to be satisfied that the visa applicant has adequate means to support herself or access to adequate means to support herself during the period of her intended stay in Australia. 

   BACKGROUND AND EVIDENCE

   Visa application and written evidence to the Tribunal

9. According to information contained in the application for a Visitor visa and supporting documents the applicant is a 30-year-old Fijian national.  Her parents, two sisters and two brothers reside in Fiji and she has two aunties, an uncle and numerous cousins residing in Australia.  She requested a further stay of up to 12 months to accompany her aunt, who is an author, around the country and to visit other parts of the country.  She indicated that she would be financially supported by her family in Australia for the duration of her stay.

10. A letter sent to the Tribunal, authored and signed by two supporters (cousins), indicates that the visa applicant will be financially supported by her family in Australia for the period of her extended stay in Australia.  As proof of capacity payslips were attached.

    Oral evidence to the Tribunal

11. The applicant appeared by telephone along with her aunt who also provided testimony.  Their testimony is summarised as follows:

12. The applicant confirmed her migration history with the Tribunal.  She arrived in Australia in January 2018 and later was granted a further Visitor visa which ceased in June 2018.  Thereafter she made another application for a Visitor visa stating that she wished to stay in Australia until 4 June 2019 “To accompany my aunt who is an author for Children’s Book The 12 Disciples of Jesus written by Temalesi WMK Savou, touring around the country and experience other new places in Australia”.

13. The reason for the applicant’s initial travel to Australia was to attend a family wedding.  Her aunt payed for all expenses associated with this trip and she brought no funds of her own to Australia. 

14. The applicant stated that in the two years since she made the application to extend her visa she has been studying.  She said she has undertaken studies toward a Certificate III in Disability Support but has been unable to complete the course because she is required to complete a work placement and cannot due to not having work rights.  She informed the Tribunal that she had the right to study under the conditions of her Bridging visa.

15. The applicant confirmed to the Tribunal that she did accompany her aunt to various locations in 2018 to promote her books.  She said that her aunt continues to promote her books overseas, but she is unable to travel with her to those destinations.

16. When asked why she had remained in Australia given she had achieved the stated outcome of her request for an extension of stay she said that her visa didn’t allow her to depart Australia.  She added that she was still here under a Bridging visa.

17. When asked why she still needs to stay longer in Australia she said that she is waiting for an outcome to her application for review.

18. The Tribunal asked the applicant what her intentions are now, and she said that she wants to remain in Australia and be able to work and live here. She said that she will apply for another visa which would allow her to work in Australia.

19. The applicant confirmed that she has been living with her aunt ever since her arrival in Australia in 2018.  She said her aunt is married and has two children who are not living at home. 

20. When asked how she has supported herself she said her aunt has provided for all her expenses.  She denied ever working in Australia.  Later in the proceedings she said that she has been looking for work opportunities and has had some favourable responses.  However, she said she cannot work yet as she does not have work rights.

21. The applicant’s aunt said that she is an author who is working with a publisher in the USA.  She said she travels overseas regularly to promote her books.  At the same time, she is a foster carer responsible for six aboriginal children.  She said she receives a government allowance for being a foster carer. 

22. The applicant stated that if she is granted another Visitor visa her aunt will continue to support her financially.  The applicant’s aunt stated that the applicant helps her to care for one of the children who is disabled.  She added that the applicant accompanies her wherever she goes in connection with her work.

23. Responding to the Tribunal’s observation that it is difficult to believe she has not needed to work given the length of time she has been in Australia, the applicant maintained that she has never worked as she has no work rights.

24. The applicant said that she has not yet applied for any other visa but indicated her wish to do so.  She said she hasn’t done so yet as she has been waiting for the outcome of the review.

25. As to any incentives the applicant might have to return to Fiji she said that her parents and five siblings are all living and working in Fiji.  She said that she formerly had a job in Fiji as a welder but that the position is no longer available to her.

26. The applicant stated that she has two Australian citizen aunties living in Australia and many Australian cousins. 

27. The applicant confirmed that she is single and has no children. 

28. The Tribunal put it to the applicant she has been in Australia for close to two and a half years and has indicated that she wishes to remain here to work and live.  The Tribunal indicated that in such circumstances it does not appear that she genuinely intends to remain in Australia temporarily.  The Tribunal put it to the applicant that it would be difficult to recommend that she satisfies the criterion in cl.600.212.  The applicant indicated that she understood the Tribunal’s opinion. 

29. The applicant was asked what she will do if the review is unsuccessful and she said that she will appeal to the Minister to give her an opportunity to remain in Australia.  Alternatively, she said that she will apply for a different type of visa which would allow her to work in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Adequate means of support

30. The applicant maintains that she has not worked in Australia for the duration of her stay and that she has been financially supported by her family in Australia, principally her aunt.  While the applicant’s aunt failed to provide the requested proof of her financial status post-hearing there is correspondence before the Tribunal from other family members in Australia pledging their financial support for her.  While not without some considerable doubt, and in the absence of any information to the contrary, the Tribunal is prepared to accept the applicant has access to adequate means to support herself during a further stay in Australia.

    Genuine intention to remain temporarily

31. However, for the following reasons the Tribunal is not satisfied that the applicant genuinely intends to remain in Australia temporarily for the stated purpose of the visa.

32. As noted in the above discussion the applicant made an application in 2018 to remain in Australia for a further twelve months until 4 June 2019 to accompany her aunt on a book promotion tour and her evidence to the Tribunal is that she completed this objective.  There is no evidence before the Tribunal and nor is it claimed that the applicant has made any arrangements to depart Australia almost twelve months after the requested end date declared in her application for a Visitor visa.   On the contrary, during the hearing the applicant declared that it is her intention to remain in Australia to work and live.  Indeed, the applicant declared that she has been actively exploring options to work in Australia. She said that she will ask the Minister to intervene in her case if her review is unsuccessful and/or seek to apply for a different visa to enable her to remain in Australia.  Based on the length of time the applicant has been in Australia to date and given her clearly stated intentions, the Tribunal considers she is highly motivated to remain in Australia.  The Tribunal is not satisfied that the applicant will depart Australia when her visa ceases if she is granted a further Visitor visa.

33. For the above reasons the Tribunal is not 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 not met.

    DECISION

34. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Tania Flood
    Member