Sander (Migration)

[2021] AATA 4418

Sander (Migration) [2021] AATA 4418 (16 November 2021)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kea Lynette Sander

VISA APPLICANT:  Mrs Iga Gima Novau

CASE NUMBER:  1917417

HOME AFFAIRS REFERENCE(S):          1474947011 CLF2019/36848

MEMBER:Denise Connolly

DATE:16 November 2021

PLACE OF DECISION:  Sydney

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 16 November 2021 at 12:14pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant and intention to comply with conditions of visa – after last substantive visa ceased, remained in Australian on multiple bridging visas for serious and extensive medical treatment and rehabilitation – family members in Australia and home country – good marriage and close family – decision under review remitted

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

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 Home Affairs on 28 May 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 22 May 2019. 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 (Cth) (the Regulations). Relevantly, 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. The review applicant appeared before the Tribunal on 30 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Geoff Sander, the review applicant’s husband.   

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

   CLAIMS AND EVIDENCE

   Background to the review

6. According to information provided in the application for the visa, the visa applicant is a 69-year-old citizen of Papua New Guinea, residing in Central Province. She has a husband, two sons, a brother in law, daughter in law, and two granddaughters in Papua New Guinea. Her two sisters, a brother in law, and a niece reside in Australia. She wishes to travel to Australia for up to 12 months with one of her granddaughters, to visit family members in Brisbane, Sydney, and Melbourne. She will be accommodated and financially supported by her brother in law and daughter in law in Australia. She retired in 2005.

7. The visa applicant has visited Australia on three previous occasions between 2002 and 2009 as the holder of various visas including Business (Short Stay) visas (Subclass 456), a Tourist visa (Subclass 676) and a Medical Treatment (Short Stay) visa (Subclass 675). On her last visit to Australia, she arrived on 3 April 2007 on a Subclass 675 visa. That visa ceased on 3 July 2007. However she remained in Australia on multiple Bridging visas before departing Australia on 9 February 2009. 

8. The review applicant is the visa applicant’s sister and an Australian permanent resident. She first arrived in Australia in 1994. She holds a Return Resident visa (Subclass 155).

9. The following copied documents were submitted with the visa application form:

   ·letter dated 20 May 2019 by the visa applicant’s son and daughter in law, stating their daughter Abigail will accompany her grandmother to visit relatives in Australia.

   ·Letter by the review applicant’s husband, Mr Sander, dated 15 May 2019 stating he wishes to invite the visa applicant, his wife’s older sister, and her granddaughter to Australia on a multi-entry visa. He and his wife will be responsible for their welfare during their visit.

   ·Bio page from the visa applicant’s passport issued in Papua New Guinea in 2019.

   ·Polio vaccination certificate issued to the visa applicant.

   ·Bank statement for an account held in Port Moresby, in the name of the visa applicant’s daughter in law, Mary Tamarua.

   ·Bank statements and transaction history in Mr Sander’s name.

   ·Certificate indicating the visa applicant completed community education in Central Province, Papua New Guinea in 1965.

10. The review applicant has provided to the Tribunal a copy of the delegate’s decision record. On 28 May 2019 the delegate refused the visa application on the basis the visa applicant does not meet cl 600.211. The delegate found, based on Departmental records, that the visa applicant had previously inappropriately sought to extend her stay in Australia, raising concerns about her compliance with the provisions and conditions of the visa for which she has applied. The delegate believed close family members in Australia may indicate a likelihood of the visa applicant overstaying or seeking to remain in Australia. The delegate was not satisfied the visa applicant’s evidence of her ties to her home country were of significant weight to compel her to depart Australia at the end of her proposed trip. The delegate was not satisfied she has a genuine intention to visit Australia temporarily.

    Documents provided to the Tribunal

11. The review applicant made a written submission to the Tribunal explaining she married Mr Sander in 1988 in Port Moresby and they moved to Australia, where their two children were born. She is a permanent resident of Australia and has not applied for Australian citizenship despite being eligible as she does not consider it ‘proper’ because she has family in PNG.  Her other sister and brother in law are Australian citizens.

12. The review applicant stated there is no evidence that her sister has ever sought to stay in Australia ‘against terms and conditions’ of her previous visas. Her sister last visited in 2007 for medical reasons and had to stay for a further 18 months for recovery from a major neurological operation. She returned to PNG in 2009 after her medical treatment ended. Between 1973 and 2009 the visa applicant visited Australia as a professional school teacher sponsored by Salle Education Order of the Catholic Church and as a Christian engaged in Christian Church activities sponsored by Christian Revival Crusade, and the World Confederation of Teachers conference sponsored by PNG Teachers Association. Between 1973 to 2007 the visa applicant did not overstay her visas or intend to break Australian immigration laws. During her last visit the visa applicant made all the proper arrangements to stay in Australia legally for medical recuperation, including getting her passport renewed personally by the PNG High Commissioner in Canberra. 

13. The review applicant submitted that the presence of family members in Australia does not mean the visa applicant wishes to remain in Australia. Their other sister, Alu Puritau, also visits them in Australia and returns to PNG. She submitted that the delegate made a false assumption in finding the visa applicant would not return to PNG. The fact that her sister planned to travel with her granddaughter was a significant reason for her to return to PNG, to take her granddaughter back to her parents.

14. The review applicant submitted that the visa applicant’s husband is a principal landowner and their land covers virgin forests, alluvial gold mining, and deposits of oil and gas. They have no land rights in Australia. The review applicant had arranged financial support for the visa applicant and opened a bank account that she could use in Australia. All the visa applicant’s medical expenses between 2007 and 2009 were paid through a bank account opened in Australia, into which family members transferred funds. The review applicant found the delegate’s concerns about her sister to be ‘insulting’ and asked that the application be reviewed to allow her sister to visit Australia.

15. The review applicant provided copies of the visa applicant’s expired passports showing her previous visas and entry and exit stamps for visits to Australia between 2002 and 2009, and the biopage of her current PNG passport issued in 2019.

16. At the hearing Mr Sander explained that the visa applicant had travelled to Australia holding a medical treatment visa because of medical concerns. Once here she was diagnosed with a brain tumour and she was dying. She was transferred from Cairns Hospital and had surgery at Royal Prince Alfred Hospital. She then had extensive rehabilitation at Mt Colah Rehabilitation Hospital because she could not walk. She was very sick and the family feared she would die. The review applicant was her primary carer once she was discharged from Mt Colah Rehab but there were times she could not cope with the visa applicant’s needs so she was readmitted to hospital. They had no idea how long it would take for her to recover. Her treating neurosurgeon, Dr Besser, has since retired. They paid for all her medical treatment as she was not on Medicare. The visa applicant’s husband visited her in Australia during her illness and treatment but always returned to PNG so it was up to the review applicant and Mr Sander to care for her.

17. When asked about compliance with visa conditions, Mr Sander said that they understood the visa applicant was always a visa holder and never here unlawfully. The Tribunal noted this was not the case as there was a period when the visa applicant held no visa. Mr Sander said that it was a particularly stressful time as the visa applicant was so ill and they were focusing on her health and recovery. The review applicant and Mr Sander apologised for the oversight.

18. The review applicant said that since the visa applicant returned to PNG in 2009 she has been in good health. She returned to teaching a phonics program voluntarily.  Her husband is alive and financially supports the visa applicant. He also holds land in PNG from which he earns income. The visa applicant also has a son who has his own children. Her daughter died during childbirth. The visa applicant has grandchildren in PNG to whom she is attached. She would like to visit the review applicant and Mr Sander in Australia for one month. The review applicant will support her financially. Mr Sander was working as a teacher at the Victory Institute. He works on contract, on a school term basis. At the time of the hearing he did not have a contract. They live in Housing Department accommodation. They have sufficient means to support the visa applicant. She will also be financially supported by her son who is a government official.

19. The review applicant was emphatic that the visa applicant will comply with visa conditions and depart Australia in accordance with her visa conditions. She said she only overstayed her last visa because she was being treated for a brain tumour.  She has no intention of remaining in Australia beyond the period of her visa and she does not intend to secure employment or study here.

20. The Tribunal agreed to postpone making its decision so the review applicant could provide medical evidence confirming the visa applicant was treated for a brain tumour and this was the reason she overstayed her visa granted in 2007.

21. After the hearing the review applicant provided evidence that the visa applicant was a patient at RPA in June/July 2007 and underwent surgery in 2007 for removal of a schwannoma tumour from her cervical spine. Dr Heise, her treating doctor wrote to the Tribunal and confirmed she then required 6 months inpatient rehabilitation and subsequent outpatient therapy to regain the ability to walk. Dr Heise believes it was her focus on her condition and treatment which lead to her overstaying her visa.

22. The review applicant provided a letter from Pastor Walo in PNG confirming the visa applicant is in a good marriage and has close family in PNG.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. 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 she has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, 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.

24. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Tourist stream may be granted.

25. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

26. The visa applicant was granted a Subclass 675 visa on 2 April 2007. It ceased on 3 July 2007. The visa applicant’s movement records do not record any visa conditions. However the review applicant has acknowledged that the visa applicant remained in Australia for over a year after her last held substantive visa expired. The Tribunal notes the visa applicant’s subsequent bridging visas had various conditions imposed, including no work. There is no evidence before the Tribunal to indicate the visa applicant breached any of those visa conditions. It notes she was granted more than one bridging visa E but accepts she remained in Australia because of her medical condition.

27. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would or may be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would or may 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

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8501 – must maintain adequate arrangements for health insurance while the holder is in Australia.

    ·8558 – must not stay in Australia for more than 12 months in any period of 18 months.

28. The Tribunal accepts that the visa applicant has worked as a teacher and is now retired. It accepts that her visit to Australia will be financially supported by the review applicant, Mr Sander, her own son and her husband. It is satisfied the visa applicant does not intend to work while in Australia. It has no concerns that she intends to study. It is satisfied the visa applicant will arrange the necessary health insurance and provide evidence of this to the Department if a visitor visa is granted.

29. With respect to the delegate’s concern that the visa applicant may seek to remain in Australia beyond the cessation of a visitor visa, the Tribunal is satisfied the reason the visa applicant remained in Australia beyond the period of her last held substantive visa was because she was diagnosed with a brain tumour which required surgery and prolonged rehabilitation. There is no evidence before the Tribunal to indicate the visa applicant currently has a medical condition that requires treatment. The Tribunal is satisfied the visa applicant will comply with condition 8558.

30. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal has considered the medical evidence provided and accepts the visa applicant remained in Australia from April 2007 to February 2009 because she was diagnosed with a brain tumour that required surgery and prolonged rehabilitation. There was a period when the visa applicant did not hold a valid visa but the Tribunal accepts the family was distracted by this crisis. It notes this was 11 years ago and since then the visa applicant has returned to PNG where she has been working voluntarily. It accepts the visa applicant’s Pastor’s evidence that she is in a good marriage and has close family in PNG. It is satisfied these circumstances will provide the visa applicant with a strong incentive to return to PNG at the end of a visitor visa if one is granted.

31. Considered overall, 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

32. 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.

    Denise Connolly
    Member