Tull (Migration)

[2024] AATA 2102

Tull (Migration) [2024] AATA 2102 (3 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Linda Tull

VISA APPLICANT:  Mr Benjamin Joseph Umba

CASE NUMBER:  2305986

HOME AFFAIRS REFERENCE(S):          BCC2023/654298

MEMBER:Tania Flood

DATE:3 June 2024

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 03 June 2024 at 2:12pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visiting family – applicant has an extensive migration history – travelled in and out of Australia on a variety of different visas – has sufficient savings to self-fund his travel to Australia – economic and family ties in PNG are sufficiently important to applicant – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 20 February 2023 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 7 February 2023. 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 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 visa was refused because the delegate was not satisfied that the applicant meets the criterion in cl 600.211.

5. The review applicant appeared before the Tribunal on 24 May 2024 to give evidence and present arguments.

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

   Background

7. In the application for the Visitor visa the visa applicant indicated that he wishes to travel to Australia for up to three months for a family visit.  He is a seventy-year-old, retired citizen of Papua New Guinea (PNG).  He resides in Port Moresby.  He indicated he would self-fund his travel from retirement funds. 

8. The review applicant is the visa applicant’s daughter and is an Australian citizen.

   The delegates decision

9. The delegate noted that the visa applicant had failed to provide a copy of his passport bio-data page and was not satisfied that he meets the criterion in cl 600.211 of Schedule 2 of the Migration Regulations.

   Evidence provided to the Tribunal

10. In a letter dated 10 April 2023 the visa applicant concedes he omitted to provide the copy of his bio-data page of his passport on time and explains his attempts to rectify this matter.  He objects to the delegates finding that he does not genuinely intend to stay temporarily in Australia and argues that the finding is highly speculative, preposterous, malicious, highly inflammatory and defamatory.  He outlines his intentions to spend time with his children in Australia during the proposed visit. 

    Tribunal hearing

11. The review applicant appeared before the Tribunal on 24 May 2024 and her oral testimony is summarised as follows:

12. She has resided permanently in Australia since the age of about three.  Her mother is an Australian citizen and when her parents divorced many years ago she and her two siblings came to live in Australia with their mother.  She and her siblings are Australian citizens.

13. The visa applicant remarried to a Fijian woman.  They separated approximately two years ago and have three children.  Two of the children reside in Fiji and one daughter moves between Fiji and PNG.

14. The visa applicant resides alone in Port Moresby although his daughter from his second marriage and her children spend time with him.

15. The visa applicant’s remaining siblings, a sister and brother, reside in the central highlands of PNG. 

16. The visa applicant is retired.  Previously he worked in Government administration.  The review applicant thinks he still does some occasional contract work. 

17. The visa applicant lives in a rental property in Port Moresby.  He is in receipt of a pension. His financial situation is stable.   He has no significant health issues.

18. The visa applicant wishes to visit Australia to spend time with his children.  He has travelled between PNG and Australia on many occasions in the past and has always complied with visa conditions.   He also has grandchildren in Australia whom he has not yet met.   The visa applicant will self-fund his travel to Australia and will live between the houses of his three children. 

19. The review applicant and her siblings are not contemplating applying for a permanent visa for their father to remain in Australia.  Even when he was married to an Australian citizen this was not contemplated.  His home is in PNG and he will live out his life in PNG. 

20. The visa applicant has not been impacted by the recent turmoil in PNG.  He enjoys a close relationship with his daughter from his second marriage and his grandchildren.   His financial situation in PNG is stable.  He will return to PNG for these reasons. 

    Information received post-hearing

21. The review applicant submitted a copy of the bio-data page of the visa applicant’s passport.  She also provided copies of the review applicant’s bank statement and his retirement accumulation member statement.  In a further written statement the review applicant reiterated her oral testimony above.  She clarified that her half-sister lives in PNG.  She does not reside with the visa applicant but lives less than 2kms away.  She has two children under five and she relies on the visa applicant’s support to care for them. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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.

23. 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: cl 600.221 and cl 600.222.

24. 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)).

25. The Department’s records indicate that the review applicant is an Australian citizen.  The visa applicant has an extensive migration history having travelled in and out of Australia on a variety of different visas since the late 1980’s.  The records do not indicate any non-compliance with visa conditions over this extended period of time. 

26. 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 600.611(2)):

    ·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.

27. The Tribunal found the review applicant to be a credible witness.  Based on her oral testimony and the documentation provided in submissions the Tribunal accepts the visa applicant is a 70-year-old retiree with modest savings and a retirement income.  His bank records indicate he has sufficient savings to self-fund his travel to Australia and during his proposed short visit to Australia he will reside with each of his three children.  In the circumstances the Tribunal is satisfied that he will not work or engage in study or training in Australia for more than 3 months.  The Tribunal is satisfied that the visa applicant will comply with conditions 8101 and 8201 if he is granted a Visitor visa.

28. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

29. The Departmental records indicate that the visa applicant has been granted a series of Visitor visas since 2012 which he has utilised to travel to and from Australia for short stays of less than 3 months.  The records indicate that he last departed Australia on 2 February 2020.  Since then, according to the review applicant, he has separated from his wife with whom he previously resided in PNG.  The Tribunal acknowledges that this represents a significant change in his personal circumstances since last being granted a Visitor visa.  However, based on the available information he continues to enjoy a close relationship with his daughter from his second marriage and her two young children who reside, at least for a significant portion of the year, in PNG.   The Tribunal accepts the review applicant’s testimony that these family members live in very close proximity to the visa applicant and that the visa applicant is an important support person to his daughter and grandchildren.  The Tribunal notes that the visa applicant also has children and grandchildren residing in Australia but their presence here has not enticed him to seek to remain permanently in Australia in all the years he has been travelling to and from the country. 

30. As noted above the available information supports that the visa applicant is in receipt of a pension and has personal savings.  The Tribunal is satisfied that his financial situation is stable and that he has sufficient financial means to support his life in PNG.  While his family ties are divided between Australia and PNG the Tribunal is persuaded that his economic and family ties in PNG are sufficiently important to him and will entice him to return home after a short visit to Australia.

31. In forming the above opinion, the Tribunal also notes and has placed much weight on the fact that the visa applicant’s extensive migration history over many years reveals no non-compliance with visa conditions.  The Tribunal considers his migration history demonstrates that he is content to visit Australia for short periods of time to spend time with his children and grandchildren and then to return home. 

32. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

33. 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.

34. The Tribunal notes the delegates concern that the visa applicant had failed to provide a copy of the bio-data page of his passport.  For completeness it is noted that this information is currently before the Tribunal.

    DECISION

35. 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.

    Tania Flood
    Member