Trevail (Migration)

[2024] AATA 1931

Trevail (Migration) [2024] AATA 1931 (7 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Lee Trevail

VISA APPLICANT:  Ms Corazon Colongco Decca

CASE NUMBER:  2305208

HOME AFFAIRS REFERENCE(S):          BCC2023/340042

MEMBER:Member Nathan Goetz

DATE:7 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision of the delegate dated 20 February 2023 refusing to grant the visa applicant a Visitor (Class FA) Subclass 600 visa and remits the visa application back to the delegate for reconsideration with a direction that the visa applicant satisfies the following criteria:

·Clause 600.232(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 07 June 2024 at 11:34am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – sponsored family stream – specified relative – sponsorship form declared sponsor not related to applicant – long-term partner, with dual-citizen children who have lived in both countries – form gives biological relationships as examples – statements and documentation – sponsor’s regular travel until COVID restrictions, and applicant’s care for elderly mother – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a), (3)
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 600.232(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicant a Visitor (Class FA) Subclass 600 visa.

   BACKGROUND AND CRITERIA FOR THE VISA

2. The visa applicant is a female citizen of the Philippines presently located outside Australia and born in 1981. The review applicant is a male citizen of Australia born in 1948.

3. On 19 January 2023 the visa applicant applied for the visa. At the time of visa application, the criteria for the grant of the visa were contained in cl 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). There is one Subclass with several streams. The visa applicant applied for the visa in the sponsored family stream.

4. On 20 February 2023 the delegate refused to grant the visa. The delegate found that the visa applicant did not satisfy cl 600.232 of Schedule 2 to the Regulations. This clause provides the following:

   600.232

   (1)       one of the subclauses (2) to (4) applies.

   (2) The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and;

   (a)       a relative of the applicant;

   or

   (b) a relative of another applicant who is a member of the family unit of the applicant;

   or

   (c)a relative of another application in relation to whom the applicant is a member of the family unit.

   (3)The applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who:

   (a)       is a member of the Commonwealth Parliament or a State Parliament;

   or

   (b)is a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory;

   or

   (c)       Holds the office of mayor.

   (4)The applicant is sponsored by a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.

5. On 12 April 2023 the review applicant applied to the Tribunal for review of the decision.

6. On 5 June 2024 the review was constituted to the Tribunal Member. Having considered the evidence provided in support of the visa application and review application, the Tribunal was satisfied that it could make a decision favourable to the review applicant, namely finding that the visa applicant satisfied the criteria at issue.

7. In those circumstances, the review applicant lost the right to appear at a Tribunal hearing and the Tribunal made a decision on the review without holding a Tribunal hearing: ss 360(2)(a), (3) of the Act.

   CONSIDERATION OF MATERIAL AND FINDINGS

8. The issue in the review is whether the visa applicant satisfies cl 600.232 of Schedule 2 to the Regulations.

9. If the Tribunal finds that the visa applicant satisfies cl 600.232, the correct or preferable decision is to set aside the decision of the delegate and remit the visa application back to the delegate for reconsideration with a direction that the visa applicant satisfies the criteria.

10. If the Tribunal finds that the visa applicant does not satisfy cl 600.232, the correct or preferable decision is to affirm the decision of the delegate.

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

12. In the visa application form, the visa applicant identifies that she is located in Philippines and planned to visit Australia in either April or May 2024 for a family visit. She planned to travel with her daughter, Ms Megan Lee, who resides with her in the Philippines. The visa applicant identified that her daughter Ms Michelle Trevail is in Australia and is an Australian citizen, as is the visa applicant’s partner Mr Lee Trevail who is the father of her children. Mr Trevail is the sponsor for the visa application and the review applicant. The visa applicant declared that she was not married.

13. Included with the visa application form was a Philippines birth certificate for Ms Megan Trevail showing that the visa applicant is her mother, and the review applicant is her father, as well as a Philippines Affidavit of Acknowledgement of Paternity made by the visa applicant identifying the review applicant as the father of Ms Megan Trevail.

14. Oddly, the sponsorship Form 1149 completed by the review applicant without assistance declared that the review applicant was not related to the applicant. The review applicant did not claim to hold a government position to sponsor the visa applicant per the requirements of cl 600.232(2), (3) or (4).

15. Following the refusal of the visa and the review application being lodged with the Tribunal, the review applicant provided the Tribunal with several documents. These included:

16. A written statement from the review applicant detailing that the visa applicant was his partner of more than 23 years and have two children together who were both born in the Philippines and hold Australian and Philippine passports, which were attached. The child who is in Australia studying and the child in the Philippines will live in Australia once she completes her high school in the Philippines. The review applicant detailed his shock at the visa being refused due to lack of evidence. The review applicant blamed himself for this. He detailed that the visa and review applicants had separate bank accounts and the house that the couple equitably in the Philippines is registered only in the visa applicant’s name because foreigners cannot own real property in the Philippines. A document was provided that demonstrated the visa applicant will need to obtain the consent of the review applicant before disposing of two named properties in the Philippines, as well as payments from the review applicant to the visa applicant.

17. The Tribunal was provided with 19 photographs of the visa applicant and the review applicant together with their children. The photographs show the family at various ages.

18. The written statement from the review applicant detailed that until the pandemic the review applicant travelled to the Philippines three times a year and that the visa applicant had not moved to Australia permanently because she cared for her elderly mother. The review applicant has resumed travelling to the Philippines since the travel restrictions ended. This is consistent with the immigration movement records for the review applicant.

19. The statement did not address why the review applicant claimed he was not related to the visa applicant in the sponsorship form. However, the form does give examples of relationship as a brother, sister or parent. As the review applicant completed the form himself, the Tribunal suspects that the review applicant did not think that he was a relative of the visa applicant because their relationship was not biological like the examples provided in the form, and because they are not married.

20. For the purpose of a Subclass 600 visa, a relative is defined in Regulation 1.03 to mean a ‘close relative’ or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step - grandparent, step - grandchild, step - aunt, step - uncle, step - niece or step – nephew.

21. A ‘close relative’ is defined to mean ‘the spouse or de facto partner of the person; or a child, parent, brother or sister of the person; or a step - child, step - brother or step - sister of the person.

22. The evidence is that the visa applicant and the review applicant have an ongoing de facto relationship, although they live in separate countries. They have two children together who are citizens of both countries who have lived between the two countries.

23. The Tribunal is satisfied that if the visa applicant and review applicant had provided the evidence to the delegate that was provided to the Tribunal, they delegate would have made a different decision.

    CONCLUSION

24. For the reasons given above, the Tribunal is satisfied that the visa applicant is sponsored by a settled Australian citizen who is at least 18 and a relative of the applicant as provided by cl 600.232(2)(a).

25. The proper course is for the decision to be set aside and remitted back to the delegate for reconsideration with a permissible direction that the visa applicant satisfies cl 600.232(2)(a) so the delegate can consider the remaining criteria for the visa application.

    DECISION

26. The Tribunal sets aside the decision of the delegate dated 20 February 2023 refusing to grant the visa applicant a Visitor (Class FA) Subclass 600 visa and remits the visa application back to the delegate for reconsideration with a direction that the visa applicant satisfies the following criteria:

    · Clause 600.232(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth).

    Nathan Goetz

    
    

    Member