TSANG (Migration)

[2019] AATA 2095

TSANG (Migration) [2019] AATA 2095 (3 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Michael Fatt Kin TSANG

VISA APPLICANT:  Ms Zena YAMBOLI

CASE NUMBER:  1813723

HOME AFFAIRS REFERENCE(S):           BCC2017/4599781

MEMBER:Susan Trotter

DATE:3 May 2019

PLACE OF DECISION:  Brisbane

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 3 May 2019 at 2.45pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – not entitled to a substantive visa while remaining in Australia – strong family ties in Australia – intention to apply for a further partner visa – could only be pursued offshore – 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 Immigration on 14 March 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, a 46 year old citizen of Papua New Guinea, applied for the visa on 4 December 2017. 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 visa 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 they were not satisfied that the visa applicant genuinely intends to stay temporarily in Australia and therefore concluded that cl.600.211 was not met.

5. The review applicant, the visa applicant’s husband, lodged an application for review of the delegate’s decision with the Tribunal on 11 May 2018.

6. The review applicant appeared before the Tribunal on 21 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s and visa applicant’s daughter, Michaelin Tsang.

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

   ISSUES

8. Clause 600.211 requires that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Clause 600.231 sets out the purposes for which a visa in the Sponsored Family stream may be granted.

9. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the stated purpose, cl.600.211(a) requires consideration of whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa.

10. Clause 600.211(b) also requires consideration of whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The mandatory 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.

11. Clause 600.211(c) requires that consideration also be given to any other relevant matters. Department policy states that relevant consideration of any other matter may include, but is not limited to:

    ·Personal circumstances

    ·Credibility

    ·Purpose and period of stay

    ·Previous immigration/travel history

    ·Intel reports and profile. 

    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:

    o   ongoing employment

    o   the 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

    o   property, or other significant assets, owned in their home country and

    o   whether 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:

    o   economic 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

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

    o   the 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

    o   military service commitments

    o   civil 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.

    Intel reports and profiles

    Information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department about nationals from the applicant’s home country. (Note: Even though they are still mentioned on various visitor visa application forms, Modified Non Return Rate (MNRR) statistics should not be used because no quarterly MNRR report has been published on the department’s website since June 2013.)

    Officers may request further evidence from the applicant, if considered appropriate, if departmental statistical or intelligence reports on migration fraud, or profiles based on such reports, indicate that there is a significantly greater likelihood of nationals from the applicant’s home country: 

    ·staying in Australia beyond the stay period of their visa or

    ·having their visa cancelled or

    ·being refused entry to Australia or

    ·making asylum claims or applying for a protection visa. 

    Note: The mere fact that an applicant matches the characteristics of a profile is not grounds to refuse to grant a visa. Profiles are merely an alert that closer scrutiny of the applicant’s circumstances might be required. All applications must be considered on their own merits taking into account all the information and supporting documentation provided by the applicant.

12. It follows that the issue to be determined by the Tribunal is whether the visa applicant intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

    (a)  Has the visa applicant complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa?

    (b)  Does the visa applicant intend to comply with the conditions to which the visa would be subject?

    (c)  Are there any other relevant matters?

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The Tribunal has carefully considered the documentary and oral evidence before it and the written submissions, to the extent relevant, made on behalf of the visa applicant. The Tribunal observes that many of the written submissions advanced on behalf of the visa applicant addressed matters either that do not relate to a merits review process (as distinct from a judicial review process) or which bear no relevance to the matters in issue. As discussed at hearing, the Tribunal’s power is limited to conducting a merits review and it is not its role to comment on the conduct, progress or timing of the visa application process, including in relation to previous visa applications not the subject of this review.

    Does the visa applicant intend to stay temporarily in Australia the purpose for which the visa is granted?

    Issue 1 - Has the visa applicant complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa?

14. The visa applicant has not previously travelled to Australia. Therefore, there is no evidence of non-compliance with any previously held visas in Australia.

    Does the visa applicant intend to comply with the conditions to which the visa would be subject?

    and

    Are there any other relevant matters?

15. The question as to whether the visa applicant intends to comply with the conditions to which the visa would be subject necessarily also requires consideration of any other relevant matters.

16. The review applicant told the Tribunal that it is guaranteed that the visa applicant will return after a three months visit.

17. The Tribunal considered the visa applicant’s personal circumstances that might act as an incentive for her to return to Papua New Guinea at the end of the proposed visit and those that might act as incentive for her to remain in Australia. The evidence is that the visa applicant’s husband, the review applicant’s husband, and the visa applicant’s four youngest children live in Australia and that the visa applicant last saw the review applicant when he visited her in Papua New Guinea but that she has not seen her four youngest children since 2012. It is submitted that the visa applicant wishes to visit her children in Australia for a short period of time, pending application for a partner visa. Notably, the evidence before the Tribunal included that the visa applicant has previously, in 2012, applied for a partner visa, which application was refused in 2016. There is a not uncomplicated history to the previous partner application, the details of which it is not necessary to specifically traverse in these Reasons. Notably, the refusal related to not uncomplicated issues relating to the customary adoption and the birth certificates of two of the visa applicant’s children, and review was not sought of the decision beyond Department level.

18. The Tribunal accepts that the visa applicant has other relatives living in her home province Papua New Guinea, including a brother, sister, her mother, aunts and uncles and cousins and that the visa applicant lives in the home of her eldest son in Port Moresby and assists in caring for his children, her grandchildren.

19. The Tribunal accepts based on the evidence before it that the visa applicant does not to study, work or train in Australia.

20. Much was made in submissions to the Tribunal about the separation of a mother from her children and the sympathy or understanding that should be given for reuniting a family. The Tribunal accepts the very significant importance, if possible, of family unity and reunification of a mother with her children in circumstances where she has not seen them for many years. Those matters whilst of understandable importance are, however, matters which weigh against the visa applicant when considering the incentives she may have to return to Papua New Guinea as against the incentive she may have to remain in Australia. The presence of her husband and four of her children in Australia acts as a very significant incentive for the visa applicant to remain in Australia and in the Tribunal’s view outweighs the presence of other family members in Papua New Guinea. It is submitted that the visa applicant now wishes to lodge another partner visa application and wishes to have a record of having visited Australia and having abided by her visitor visa conditions, and wants to visit her family and return to Papua New Guinea, pending the outcome of a further partner visa application.

21. Notably, having applied for a visitor visa in the Sponsored Family stream, if the visa were granted, the visa applicant would not be permitted to apply for any other visa while in Australia, other than a protection . Any future partner visa application would therefore need to be lodged and granted offshore.

22. The Tribunal notes that the Department’s procedural guidelines, Procedures Advice Manual (PAM) 3, includes the following in relation to the grant of a Visitor visa:

    Intention to make a further application in Australia

    If an applicant applies for a visitor visa but intends to make a further visa application in Australia (whether this intention is stated or not), this does not necessarily indicate that the applicant does not intend a genuine temporary stay and is not a reason in and of itself to refuse the visitor visa. If the Regulations allow an application to be made in Australia by an FA-600 visa holder in Australia, s65 delegates should not be seeking to block this pathway.

    In addition, an intention to apply for a further visa in Australia does not necessarily indicate that the person will not leave Australia before the FA-600 visa ceases. The question to consider is not “will this person apply for a visa in Australia” but rather, “if this person does not apply for another visa in Australia, or if they apply and are refused, will they abide by the conditions of the visa and will they leave Australia”. The answer to this will help to determine if the applicant intends a genuine temporary stay.

    If there is a stated intention to apply in Australia for a visa (such as a Partner visa), s65 delegates should focus on assessing if the applicant intends a genuine temporary stay in relation to the FA-600 visa for which the person have applied – the focus is not on assessing any relationship:

    ·The genuineness of a relationship will be assessed if and when a Partner application is made. Applying for a Partner visa in Australia is a legitimate visa pathway.

    ·It is acceptable for a person to apply for an FA-600 visa in order to be with their partner to maintain an established relationship.

    ·An applicant who discloses an intention to continue a relationship (or, enter into a relationship (as they have not met before)) should not be disadvantaged as a result of that disclosure.

    Taking a fair and reasonable approach

    Officers should take a fair and reasonable approach to the genuine temporary stay requirement, particularly if the applicant is in a continuing partner relationship with an Australian citizen or permanent resident and/or there are children involved.

    The focus should be on the current intentions of the applicant. Consequently, the genuine temporary stay requirement can be satisfied, even if there is a possibility that the applicant might later attempt to make a further application in Australia, seek permanent residence and/or return to Australia. …

23. The guidelines are not binding upon the Tribunal but where not inconsistent with the legislation and regulations, the Tribunal is satisfied that it is appropriate to have regard to the guidelines as a relevant factor to take into account.

24. As stated in the guidelines the question to consider is not “will the applicant apply for a visa in Australia?” but rather, “if the applicant does not apply for another visa in Australia, or if he applies and is refused, will he abide by the conditions of the visa and also leave Australia?”.

25. The Tribunal accepts that it is the visa applicant’s intention to apply for a further partner visa, and that in the circumstances, she would only be able to make such an application offshore (condition 8503), and the visa would only be able to be granted while she was offshore. The Tribunal places significant weight therefore on this consequentially meaning that the visa applicant’s stay in Australia pursuant to the visa the subject of this application, if granted, would necessarily have to be a temporary stay in order to pursue and be granted an offshore partner visa.

26. It is of understandable concern that the visa applicant has minimal personal, financial and employment ties to Papua New Guinea that would act as an incentive to return. However, having had regard to all of the evidence, notwithstanding the presence of the visa applicant’s husband and four of her children in Australia, the Tribunal is satisfied that the visa applicant understands the importance of, and intends to comply with, the conditions of the visa and will leave Australia after a short visit. As noted in the Departmental guidelines,

    Conclusion

27. Having taken all of the above matters into account, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

28. The Tribunal therefore finds that the requirements of cl.600.211 are met.

    DECISION

29. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Susan Trotter
    Member