Reading (Migration)

[2018] AATA 3350

Reading (Migration) [2018] AATA 3350 (20 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Yolanda Reading

VISA APPLICANT:  Ms Adelina Hular

CASE NUMBER:  1819909

HOME AFFAIRS REFERENCE:                BCC2018/3858836

MEMBER:Rosa Gagliardi

DATE:20 August 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 20 August 2018 at 5:07pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored family stream – Review applicant undergoing chemotherapy – Review applicant supports extended family in the Philippines – Provide emotional support – Incorrect information provided – Previous visa applications refused – Visa applicant complied with previous visa conditions – Decision under review remitted for reconsideration  

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.211, 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 Immigration on 6 July 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 20 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 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 (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 visa on the basis that the visa applicant did not meet cl.600.211 because it was considered that the applicant did not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 17 August 2018 to give evidence and present arguments, as did her spouse, Mr Reading. The Tribunal also received oral evidence from the visa applicant overseas by phone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting her sister, the review applicant, and staying with her during the review applicant’s next round of chemotherapy. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Background

9. The applicant is 44 years of age and was born in Sorsogon in the Philippines.  The applicant is a single mother who has largely raised three children on her own. She has a son aged almost 24 years of age who lives at home.  She has another son who is almost 18 years of age and a daughter aged 15 years of age.  It was claimed at hearing that the children were all highly dependent on their mother but that during the applicant’s absence, would be living with their grandmother who would take care of them.  The applicant wants to be able to stay in Australia for up to six months.

10. The applicant and her spouse, Mr Reading, do not have any children.  The applicant’s husband works as a sales representative and is on the road and during the day is unable to be with his wife, the review applicant, who has cancer.  The couple do not have any other family members who can assist during this time and Mr Reading spoke at hearing about how guilty he felt about leaving his wife alone during the day. As he was currently the only breadwinner for the household he had no option. The review applicant has been working as a nurse but due to her illness was not able to work now.

11. It was strongly argued that the applicant simply wanted to take care of her sister by providing  emotional and practical support and to generally be there for her as she undergoes chemotherapy; there was no other purpose to the visit.

12. In support of the application, the following was submitted:

    ·A letter from the review applicant dated 9 July 2018 setting out her medical condition and stating that she was feeling lethargic and depressed and that she needed assistance.  Unfortunately, her entire family lived in the Philippines.  Her mother was not in a position to travel to Australia; her younger brother was disabled and the applicant was the only one who was able to travel to Australia to be with her.  The review applicant also wrote that the applicant had already travelled to Australia previously to assist her during periods of depression and had always complied with her visa conditions.

    ·A medical report dated 1 June 2018, confirming the review applicant’s medical condition, including that the review applicant is recovering from surgery and will be required to undergo chemotherapy.

    ·A detailed letter from a Consultant Nurse at Northern Hospital, Ms Cheryl Murray, dated 16 May 2018, supporting the applicant’s travel to Australia to visit the review applicant stating that in April 2018, the review applicant’s world was torn apart with a diagnosis of breast cancer and that her pathology showed a cancer that requires a lot of different treatment for a long period of time.  Ms Murray also refers to the applicant’s spouse being supportive but that unfortunately, “the finances and lack of sick leave/carers leave is not allowing him to accompany Yolanda to all of her appointments now or assist with treatment days and with his long hours working he is away from home and unable to assist if she is unwell during the day, naturally Yolanda is worried about the day to day duties that are required at home.  Due to the lack of services and ineligibility, Yolanda is unable to get home help, personal care, or use the Northern Hospital voluntary driver.  With Yolanda not being able to work at the moment, David is the sole income earner for them and it is crucial that he continues to work to keep them afloat financially…”.  In addition, Ms Murray states that the review applicant is not coping well with her cancer diagnosis and is concerned for her emotional state.  She adds that the review is very close to her family in the Philippines and just needs someone to keep her company during treatment, and in the event of any unscheduled admissions due to complications of treatment. 

    ·Centrelink Medical Certificate reflecting that the review applicant is unable to work for at least 3 months.

    ·A more recent medical certificate states that the review applicant is suffering from left breast cancer and had left mastectomy and is currently undergoing chemotherapy.  Moreover, a right breast lump was recently discovered and it is possible she may have to undergo a right mastectomy.  The doctor also supports the travel of the applicant’s sister, the visa applicant, to Australia during this time.

    ·Evidence showing the strain the review applicant’s condition is having on the couple, including Mr Reading.

    cl.600.211(a)

13. 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)).

14. The applicant’s movement records show that she has previously been granted permission to travel to Australia from:

    ·26 July 2009 to 24 January 2010; and

    ·20 February 2013 to 17 May 2013.

15. The Tribunal notes that it was claimed at hearing that the reason for the applicant’s visits to Australia were to be with the review applicant during her periods of depression which were unrelated to the recent cancer diagnosis.  The review applicant had also previously travelled back to the Philippines to be with her family there during her mental health difficulties.  The Tribunal has no evidence before it that the applicant was not compliant with her visa conditions during her stay in Australia previously.  The Tribunal also places some weight on the review applicant’s arguments that if her sister had been seeking a migration outcome she might have done so when her children were younger and she would have been in a better position to obtain employment.  The Tribunal puts favourable weight on the applicant’s previous compliance with her visa conditions and accepts that she has been a source of comfort to the applicant in the past, and will be so in the future, and that there is no other reason for her stay in Australia.

    cl.600.211(b)

16. 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:

    ·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.

17. The review applicant and her spouse’s distress due to their circumstances at hearing was evident.  The Tribunal accepts that Mr Reading’s need to work means that his wife is alone during the day, and that he continues to be anxious about this matter.  The household is, however, dependent on Mr Reading’s income. 

18. The Tribunal appreciates that the applicant only works irregularly at her mother’s shop in the Philippines and that she does not own a home, but is renting accommodation for her and her children.  The Tribunal appreciates that the applicant’s financial circumstances on their own would not provide the applicant with an incentive to return to the Philippines.  When asked what sources of income the applicant had to maintain herself and her children, it was revealed that it is currently the review applicant’s spouse, Mr Reading, and previously when she was working the review applicant together with Mr Reading, who support the applicant’s family.  In fact it appears that the couple in Australia are assisting the entire extended family in the Philippines.  Evidence has been submitted to the Tribunal to support the contention that the applicant has a source of income by way of the remittances by the review applicant and her husband.  The Tribunal notes that currently the Australian Dollar purchases roughly 38.92 Philippine Piso.  Were the review applicant and her husband required to support her sister and her children in Australia, the costs would be considerably higher.  Despite the applicant’s lack of employment therefore, the Tribunal is satisfied that she and her family do have a source of income by way of remittances by the Australian couple and that the applicant’s reason for travelling to Australia is not to engage in employment.  The Tribunal also accepts that Mr Reading will provide the applicant with any financial assistance she might need in Australia.

19. In addition, the Tribunal places considerable weight on the consistent evidence submitted by the applicant and her husband that they were in the process of selling a rental property they owned to be able to provide the applicant with funds so that she could establish a business overseas and become self-sufficient.

20. Largely the Tribunal has placed weight on the applicant’s credibility and previous compliance with her visa conditions during her visits to Australia as an indicator that the applicant will adhere to the above visa conditions in future.  The Tribunal also noted that the review applicant and her spouse were credible in assuring the Tribunal they would be responsible for ensuring the applicant abided by her conditions as she had in the past.

    cl.600.211(c)

21. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The Tribunal notes that this visa class requires the lodgement of security, further lending incentive to the applicant to abide by her visa conditions.

22. Lastly, the Tribunal notes that the Department was concerned because at question 37 on Form 1418, in relation to the application for the relevant visa, it was declared that the applicant had never been refused a visa to Australia.  At question 49 on the same form she had indicated that all the information provided on the form was true and correct.  Departmental records instead show that the applicant was refused Sponsored Family Stream (FA 600) visas on 22 August 2013, 31 July 2013 and 25 September 2012.  She was also refused a Tourist (TR 676) visa on 2 April 2009.  Clearly the information provided at the time of application was incorrect, false and misleading.  This is a serious matter. 

23. At hearing Mr Reading stated that the visa applicant ought not to be blamed for the incorrect information and that in fact it was he who filled in the application form for the applicant.  The review applicant at the time, he explained, had been experiencing depression and was in the Philippines for a period and he had simply made a mistake.  He was distracted with everything that was going on.  While the Tribunal would like to give Mr Reading the benefit of the doubt on this matter, it fails to see how such an error could have inadvertently arisen, particularly as Mr Reading is a native English speaker.  In other circumstances the provision of misleading information could have seriously undermined the credibility of the applicant, the review applicant and Mr Reading, and led to the Tribunal affirming this decision.  In this case, however, the Tribunal has accepted that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  Also mitigating the false information is the fact that ultimately the applicant was granted permission to travel to Australia on two occasions without incident.

24. The Tribunal also understands that the review applicant is anxious to have her sister in Australia as soon as possible to assist her during her chemotherapy treatments due to start immediately.  Any efforts to expedite the process of the grant of the visa, if it is to be granted after all the other relevant clauses for the subclass 600 visa are met, would be appreciated.

25. 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

26. 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.

    Rosa Gagliardi
    Member