Suarez (Migration)

[2020] AATA 5791

Suarez (Migration) [2020] AATA 5791 (7 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Carriza Lin Suarez

VISA APPLICANTS:  Mr Adelaido Jr Suarez
Mr Brix Suarez
Miss Glaidelle Suarez

CASE NUMBER:  1930057

HOME AFFAIRS REFERENCE(S):          BCC2019/4701508

MEMBER:Anne Grant

DATE:7  October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 07 October 2020 at 12:08pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream –significant financial and educational commitments in home country– genuine intention to stay temporarily– compliant in the past –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 21 October 2019 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 19 September 2019. 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 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 visas, on the basis that the visa applicants did not meet cl.600.211 because they were not satisfied that any of the visa applicants genuinely intended to stay temporarily in Australia for the purpose for which the visas were granted.  

5. The review applicant appeared before the Tribunal on 15 September 2020 to give evidence and present arguments. The Tribunal had been notified that the visa applicants had suffered a loss and had a funeral listed for the same day, but would be available nonetheless to discuss their application if necessary.  The Tribunal attempted to receive oral evidence from the visa applicants in Philippines but due to telecommunication breakdown, was unable to connect successfully.  The review applicant advised that it was a public holiday in Philippines and it was possible there would be added pressure on phone and internet for that reason.  The Tribunal proceeded to discuss the claims with the review applicant and their representative (her husband, Mr Andrew Reilly) on the basis that if necessary, a further hearing could be listed to discuss the review with the visa applicants.  The hearing was conducted in English.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing and also gave evidence as the husband of the review applicant and a person who is offering financial support to the visa applicants whilst they are in Australia.  At the conclusion of the hearing, it was indicated that the review applicant and representative could submit additional material in support of their application and the Tribunal may then be in a position to make a decision without the need to discuss the application with the visa applicants. 

7. On 23 September 2020 and 24 September 2020, the review applicant and her representative submitted several supporting documents, discussed further below. 

8. For the following reasons, the Tribunal has concluded that the 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 applicants seek the visas for the purposes of visiting family and travelling within Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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. The information before the Tribunal discloses that all three visa applicants previously arrived in Australia on a visitor visa issued in May 2019 and departed in compliance with that visa after a three month stay during 2019.  The Tribunal considers that the visa applicants  have complied substantially with the conditions of the last substantive visa they held. 

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.600.612):

    ·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 review applicant confirmed that the visa applicants were aware of the conditions and did not wish to work, study or apply for any other visa if allowed to visit.  They would depart Australia at the end of the permitted stay period.  The representative indicated that he runs a business in Queensland with a large multi-million dollar turnover (a series of piggeries) which relies on foreign labour and considers his relationship with the immigration authorities to be vital to his ongoing operations.  He gave evidence that he would not risk his reputation as a reliable and compliant employer of foreign workers by sponsoring the visa applicants if he thought there was any risk that they would not comply with their visas.  He indicated that he and his wife had made sure that the visa applicants knew that they could not breach the conditions of their visas.  The Tribunal gives this information some weight.

15. The representative and review applicant gave evidence that with regard to Adelaido Suarez, he works as a construction foreman for the local municipal authority, and could take time away and still have a job when he returned.  They could obtain some evidence about his employment.  In relation to Brix, he is studying agriculture and would either take a break from study or continue it online if possible whilst in Australia.  Evidence of his current studies could be provided.  In relation to Glaidelle, she was studying accounting and would either take a break or continue online also.  They are both studying online at the moment anyway, due to the effect of the Covid19 pandemic.  The representative gave evidence that in the case of Brix and Glaidelle, he hoped at some point in the future to sponsor and support them to undertake continuing studies in Australia once they complete their current courses - if they wished to do so.  He indicated that he would therefore make sure that they honoured the conditions of this visitor visa so that they could later make an offshore application for a student visa without complications.  The Tribunal considered this to be a significant indicator that the visa applicants Glaidelle and Brix Suarez would not risk over-staying their visa or breaching any conditions as it might prejudice a future study visa application.

16. In support of their application for review, the review applicant has provided financial information in relation to the Reilly Pastoral Trust which discloses multi-million dollar turnover each month.  Also provided was a payslip for the review applicant disclosing income of $800 per fortnight.  At hearing, it was noted that the review applicant’s capacity to support three adult family members on a limi`ted income of $800 per fortnight might reasonably be questioned.  The review applicant said that is really her own spending money as she is fully supported by her husband.  They would jointly support the visa applicants, including all food, accommodation, travel costs and (if needed) medical costs whilst in Australia.  The representative confirmed that this was the case and indicated that he was very comfortably off and had the financial capacity with his wife to provide for the visa applicants and was willing to do so.  They had very much enjoyed the visit in 2019 but there were still lots of places to see in Australia and it made his wife happy to see her brother and nephew and niece.  He is able to take time off, so they can travel around Australia with their guests and they would like to do so.  He got on very well with his brother in law (Adelaido) whilst they were here last year.

17. The review applicant gave evidence that her brother had not travelled before coming to Australia, but really enjoyed his visit to Australia and wished to take advantage of the opportunity to travel some more, particularly given the fortunate position she finds herself in and her capacity to accommodate and support him.  Mr Reilly confirmed that evidence and said that he saw how much his wife enjoyed spending time with her family and that he also enjoyed having them here and showing them around, so thought it would be good to have them come back and continue their adventure.  Mr Reilly gave evidence (confirmed by the review applicant) about the length of the visa that had been applied for and why.  He said that they had heard of another friend who had asked for a 12 month visa which had been granted with no trouble, so they thought applying for a longer visa period would give them more flexibility and time together for travel.  He noted that the delegate indicated in the decision under review that the length of the visa was now being considered an indication of some desire on the part of the visa applicants to stay in Australia permanently, and ‘bypass’ the proper migration channels - when they only applied for a visa of that length on the urging of himself and the review applicant.   The Tribunal accepts this evidence from the review applicant and her husband. 

18. The Tribunal noted that Mr Reilly’s capacity to support three additional adult relatives for up to a year in Australia was not clear on the financial statements that had been provided, because they were company documents and not his personal finances.  He undertook to speak to his financial advisor and provide evidence showing that he had that personal financial capacity.  He reiterated that he was comfortably off, and they had a large home with ample room for their guests, and also the capacity to meet all of their needs whilst here. 

19. Subsequent to the hearing, the review applicant provided the following material:

    ·     Suncorp Bank transaction history:  A H Reilly Super Fund (Business Everyday) showing a balance of $49,545.32 as at 11 September 2020;

    ·     Suncorp Everyday Options Statement Mr A H Reilly showing a balance of $107,129.67 as at 30 June 2020;

    ·     Bank statement for Philippine National Bank for Brix Suarez showing deposits and spending with a balance of 2,377.51 as at 4 September 2020;

    ·     Saint Theresa College of Tandag Inc certification of enrolment of Glaidelle Suarez as a first-year student in the degree of Bachelor of Science in Accountancy (BSA).

    ·     Cantilan Bank certification issued 22 September 2020 for Adelaido Suarez confirming a balance of 35,555.27 pesos. 

    ·     Office of the Municipal Mayor (San Miguel) certification (22 September 2020)  that Mr Adelaido Suarez is an employee of the Local Government Unit as Carpenter Foreman from January 2019 up to present with a basic salary of 500 pesos per day. 

    ·     Office of the Municipal Mayor (San Miguel) certification about review applicant from 2016. 

    ·     Bank Statement for Philippines National Bank for Glaidelle Suarez showing balance of 37,541.51 as at 15 September 2020.

    ·     Surigao Del Sur State University Certification of the Registrar that Brix Suarez is enrolled in a Bachelor of Agricultural Technology as a second year student.

    ·     Letter from Mr Michael Cleke, Relationship manager, Suncorp-Metway Bank confirming that Mr Andrew Reilly has an extensive relationship with Suncorp Bank and is in good financial standing with a long term established piggery business, sound asset and equity position, good profitability and cash reserves and overall performing well.  

20. The Tribunal found the review applicant and her husband and representative to be reliable and thoughtful witnesses and accepts their evidence.  Taking into account the visa applicants’ compliance with their earlier visas, the reasons given by the review applicant and her husband for why they requested a 12 month visa, and the information given about the intentions of the visa applicants whilst in Australia, the Tribunal is satisfied that the visa applicants intend to comply with the conditions to which the Subclass 600 visa would be subject.

21. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In considering c.600.211(c), the Tribunal also had regard to the policy guidance and factors described in the Department’s Procedures Advice Manual (PAM3) where is relevantly states:

    Personal circumstances
    Namely:

    ·the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:

    oongoing employment

    othe presence of close family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia

    oproperty, or other significant assets, owned in their home country and

    owhether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance

    and

    ·the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:

    oeconomic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia

    oeconomic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.

    othe applicant’s personal ties to Australia, that is:

    §does the applicant have more close family members living in Australia than in their home country

    §is the applicant subject of adoption proceedings that have not been resolved in their home country

    omilitary service commitments

    ocivil disruption, including war, lawlessness or political upheaval in the applicant’s home country.

    Note: If refusing a visitor visa in relation to the genuine temporary stay criterion, s65 delegates must take care not to confuse the applicant’s financial circumstances as an incentive to return and the applicant’s access to ‘adequate means of support’. They are separate factors and so must be considered separately.
    Credibility
    The applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application).
    Purpose and period of stay
    Whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with “tourism”).
    Previous immigration/travel history
    Previous immigration and travel history, such as: 

    ·previous visa applications for Australia

    ·previous overseas travel, that is, has the applicant travelled to countries other than Australia.

    In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.

22. The Tribunal is satisfied that the review applicant and her husband have the intention and, based on their newly provided financial information about Mr Reilly’s financial position, the capacity to financially support and physically accommodate the visa applicants for the entirety of their visit to Australia.  I am also satisfied that the visa applicants, based on their banking statements and information, have significant financial and educational commitments and family connections in Philippines which suggest that have reasons to return home to continue their respective studies or employment (as applicable in each case).

23. The Tribunal accepts that Mr Adelaido Suarez has employment in San Miguel but in a senior position.  Based on the evidence of the review applicant and her husband, the Tribunal also accepts that he would be able to take leave to travel for a lengthy period without losing his employment due to his close relationship with the Mayor and the high regard he is held in, in San Miguel. The Tribunal accepts that both Brix Suarez and Glaidelle Suarez are tertiary students undertaking Agricultural and Accounting studies respectively.  Based on the evidence of the review applicant, the Tribunal accepts that they are able to take either a break from study, visit Australia during holidays or continue studying online whilst in Australia, (depending on the timing and length of stay when a visa is granted).  All of the visa applicants have family in both the Philippines and in Australia, so the Tribunal considers that there are ‘pull factors’ towards both countries, but that study and employment are substantial factors suggesting they will return to their home country in accordance with their visas.

24. Having considered the information and evidence before it as a whole, the Tribunal is satisfied that the visa applicants intend to visit Australia to see family and genuinely intend to stay temporarily.   

25. For the above reasons, the Tribunal is satisfied that the visa applicants 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.

    DECISION

26. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Anne Grant
    Member