Umblas (Migration)

[2018] AATA 5848

Umblas (Migration) [2018] AATA 5848 (11 December 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Edna Umblas

VISA APPLICANT:  Mr Ramil Hernandez

CASE NUMBER:  1728599

DIBP REFERENCE(S):  

MEMBER:Linda Holub

DATE OF DECISION:  11 December 2018

DATE CORRIGENDUM

SIGNED:7 May 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

At paragraph 26 of the decision record the words ‘The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa’ should be replaced with ‘The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration’.

Linda Holub
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Edna Umblas

VISA APPLICANT:  Mr Ramil Hernandez

CASE NUMBER:  1728599

HOME AFFAIRS REFERENCE(S):           CLF2018/4429

MEMBER:Linda Holub

DATE:11 December 2018

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 11 December 2018 at 2:06pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – intends to stay temporarily in Australia – family reunion – complied with previous visa conditions – positive migration history – incentives to return to home country – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

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 11 October 2017 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 applied for the visa on 11 October 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 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 (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 the visa applicant did not meet cl.600.211 because the delegate was not satisfied the applicant intends to stay temporarily. 

5)    The review applicant appeared before the Tribunal on 4 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

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

BACKGROUND

7)    The review applicant is the visa applicant’s sister.  The review applicant confirmed that she came to Australia on a skilled family visa having been sponsored by her brother.  The visa applicant was born in February 1973 and is a Filipino national. 

CONSIDERATION OF CLAIMS AND EVIDENCE

8)    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.

9)    In the present case, the visa applicant seeks the visa for the purposes of reuniting with his family who he has not seen for some time.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.  A statement from the review applicant to the Tribunal states that the visa applicant was to travel to Australia with his parents for a family reunion including a celebration of their father’s 85^th birthday on 24 November 2017.

10) 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)).  The review applicant stated in a submission to the Tribunal that the visa applicant came to Australia in 2006 and complied with his visa conditions.  The Department’s movement record confirms this.  The Decision Record refers to two previous applications in the Sponsored Family Stream being refused.  These refusals occurred after his 2006 trip.

11) The Tribunal heard at hearing that the review applicant’s parents travelled to Australia in 2018.  The records show that they complied with their visa conditions.

12) 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.

13) According to written evidence submitted to the Department, the review applicant had been employed as a permanent full-time accounts payable clerk at Metcash Trading Limited from June 2010 until October 2017. Her husband was also been employed by the same company since February 2013.  At hearing the Tribunal heard that after being made redundant by Metcash, the review applicant has worked at Downer Engineering since January 2018; also as an accounts payable officer.  The Tribunal sighted her ID at hearing and after the hearing was provided with her recent pay slips.   They show that her base salary is $60,370 per annum.  Her husband was made redundant also and is still looking for a job.  

14) The review applicant and her husband live in a rented house in Australia with their three younger children.  They own a house in the Philippines, which her parents and her brother live in the house.  They have two cars; although one is owned by the daughter.   They have no debts.  At hearing the Tribunal sighted the review applicant’s St George Complete Freedom account which was consistent with a statement previously provided for the period 19 March 2017 to 18 Aug 2017.  The current balance in the account is around $5,000.  The Tribunal also sighted a bank balance of another bank account of $177, 472. 

15) Written evidence was provided that the visa applicant has been a Financial Advisor with the Philippine American Life and General Company since April 2003.  It states that a certificate of authority is issued by the Insurance Commission and is renewed annually every 31 December subject to his sale performance.  A letter from his employer states that he was granted leave and was expected to return to work.  A copy of the visa applicant’s tax return was provided to the Department and the Tribunal.

16) At hearing the Tribunal heard consistent evidence that the visa applicant has been a financial adviser for almost 15 years.  He is responsible for the life insurance policies and investments of his clients and also to educate them about the value of money.  It was confirmed that he is not salaried but relies on commission.  The Tribunal sought evidence of his income.  After the hearing, the review applicant provided a letter from Philippine American Life and General Company stating that the visa applicant earns a monthly income of P30,000 ($AUD780) per month from his commission. 

17) The visa applicant owns a number of insurance policies and investments with the same company.  A number of related documents were provided to the Department.  A statement from the BDO Unibank states that he has the equivalent of around $AUD2,500 on deposit.

18) The Tribunal heard consistent evidence that the visa applicant is not planning to work, study or train while he is in Australia.  Both the visa a review applicant stated that the review applicant will pay for the visa applicant’s airfare and cover his living expenses while he is in Australia.  The visa applicant is in good health and does not take any medication. 

19) The visa applicant has not had any problems in the Philippines in relation to his religion or ethnicity or in relation to the political/security situation.

20) In relation to the incentives for the visa applicant to return to the Philippines at the end of his stay, the review applicant referred to him being the only child of their parents in the Philippines.  He lives with them and they rely on him to assist them in their daily life.  The Tribunal heard consistent evidence from the parties that he helps them with shopping, cleaning the house ensuring they maintain a consistent medication regime.  The review applicant also referred to the visa applicant’s positon as a financial adviser.  She stated that he earns quit a good income.  The visa applicant also referred to his worked in the Philippines and that he felt an obligation to his clients to give information about investments.  In addition the visa applicant stated that his parents rely on him to communicate with services and providers  

21) Condition 8503 refers to entitlement and does not require compliance.

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

Findings

23) The Tribunal has had regard to the review applicant’s financial situation in view of the fact that her husband is not currently employed and also the visa applicant’s financial position.  The Tribunal is satisfied that given the review applicant’s current savings balance that she is able to cover the costs of the visa applicant’s visit and that he will not work, study or train during his stay.  In coming to this view, the Tribunal has also taken account of the fact that the evidence demonstrates that the visa applicant has had a long –term role and that since 2003 his sales performance has resulted in his continual re-certification by the relevant authority.

24) The Tribunal has put significant positive weight on the visa applicant’s positive migration history and that of his family’s.  The Tribunal is of the view that he would not want to jeopardise future visits.  The Tribunal accepts the incentives as outlined by the parties as sufficient reason for him to return to the Philippines at the end of his stay.

25) 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

26) The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Linda Holub
Member