Villavicencio Prieto (Migration)

[2019] AATA 588

Villavicencio Prieto (Migration) [2019] AATA 588 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Marill Del Rosario Villavicencio Prieto

VISA APPLICANTS:  Mr Julio Ceas Villavicencio Dalis
Mrs Estilita Maria Prieto Perez

CASE NUMBER:  1806684

HOME AFFAIRS REFERENCE(S):           BCC2017/4513441

MEMBER:Adrienne Millbank

DATE:21 February 2019

PLACE OF DECISION:  Brisbane

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

·cl.600.211 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in relation to the second named visa applicant.

Statement made on 21 February 2019 at 11:43am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – family visit – complied with conditions of previously held visas – incentives to return home – political and security situation – strong family and cultural ties in Venezuela – credible testimony – combined application for review – invalid for the second applicant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 4.12; 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 9 January 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, Mr Julio Cesar Villavicencio Dalis, applied for the visa on 28 November 2017, and his wife, Mrs Estilita Maria Prieto Perez, applied for a Visitor visa at the same time. Mr Dalis and his wife are nationals of Venezuela, and at the time of decision are 67 and 59 years old respectively.

3. Mr Perez and his wife applied for the visas for the purpose of visiting their daughter, the review applicant, their son-in-law and two grandchildren, in Australia. 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 Tourist stream.

4. 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.

5. The Delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211. As set out in the decision record, the Delegate gave weight to the claims of the applicant but more weight to the situation in Venezuela, with its unstable economic, political and social environment:

   The applicant stated in the application that he wants to visit his daughter and son-in-law in Australia in the company of his wife. I have considered the political and security situation in the applicant’s home country, Venezuela. Open source information indicates that Venezuela has suffered political and civil unrest over many years and that the situation remains unpredictable. I find that these circumstances are of such a nature that they would act as an incentive for the applicant to remain in Australia and not return to their home country at the cessation of the visa. 

6. On 13 March 2018 the review applicant lodged an application for review of the decision of the Delegate. This application was in the form of a combined application, with the visa applicant’s wife, Mrs Estilita Maria Prieto Perez, as the second applicant. On 22 November 2018 the Tribunal wrote to the review applicant advising her that the application might not be valid for the second applicant, as it was not possible, apart from some exceptional circumstances which did not apply in this case, to combine applications for this visa class. The Tribunal invited the review applicant to comment, by 6 December 2018, on the validity of the application.

7. On 27 November 2018 the review applicant responded by letter and advised: that she attended the Tribunal with her husband, in person, and was orally advised by Registry staff ‘to lodge one (1) application for both my parents’; that she was prepared to lodge another application for review; that should the Tribunal require an Australia citizen to sponsor her parents, her husband would do so; and that she and her husband were ‘willing to take all measures to meet the Tribunal’s requirements’.

8. The Tribunal invited the review applicant to a hearing and advised her that the issue of the validity of the application would be discussed at the hearing.

9. The review applicant appeared before the Tribunal on 8 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband (the visa applicants’ son-in-law), who participated in the hearing as a sworn witness.

10. At the outset of the hearing the Tribunal advised the parties that it had determined that it had no jurisdiction to review the decision to refuse the review applicant’s mother a Visitor visa.

11. Circumstances under which Part 5 reviewable applications may be combined are set out in Regulation 4.12. Relevantly, r.4.12(4) provides that if a person has nominated or sponsored two or more members of the family unit in respect of their primary applications for visas of a kind referred to in s.338(5) of the Act, and the Minister’s decision in respect of two or more of the members of that family unit are that a visa not be granted, and the Minister’s decisions are Part 5 reviewable decisions, the nominator or sponsor may combine his or her applications for review by the Tribunal in respect of each of the member of the family unit to whom the Minister refused to grant  visa. To be a s.338(5) reviewable decision the visa applicants must have been sponsored by an Australian citizen or the holder of a permanent visa. In this case the applicants applied under the tourist stream, and put down their daughter as an Australia permanent resident they intended to visit. Their applications were not sponsored applications.

12. The Tribunal further advised the parties that it would have no jurisdiction to review a separate review application for the review applicant’s mother, because such an application could not meet the mandated time limit of 70 days from the date of refusal. The Tribunal told the review applicant that it sympathised with the parties’ situation, and understood how they might have come to the belief that a combined review application would suffice. The Tribunal advised the review applicant however that it is the responsibility of a review applicant to lodge a correct application, and that it is not the role of the Tribunal’s Registry staff to provide review applicants with advice on review applications.

13. The review applicant stated that she understood that the Tribunal had no jurisdiction to review her mother’s case, and the reasons why.  She confirmed that she wanted the Tribunal to proceed to review the decision to refuse her father’s application.

14. The review applicant did not indicate that she wanted the Tribunal to take oral evidence from her father, the visa applicant, in Venezuela, and advised that he was not expecting a call from the Tribunal. As ample documentary evidence was provided to the Tribunal, and the issues of the case were addressed to the satisfaction of the Tribunal during the hearing, the Tribunal decided that it was not necessary to proceed to obtain oral testimony from the visa applicant in Venezuela.  

15. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

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

17. The Tribunal notes that the information and evidence before the Tribunal applied equally to the application and circumstances of the visa applicant’s wife as to the application and circumstances of the visa applicant; and that had the Tribunal had jurisdiction to review the case of Mrs Estilita Maria Prieto Perez, it would have similarly concluded that the matter of her visa refusal should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

19. In the present case, the visa applicant is seeking the visas for the purpose of visiting his daughter and her family in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

    Compliance with previous visa conditions

20. 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)).

21. The visa applicant and his wife, the review applicants’ parents, were granted Visitor visas on 3 March 2016.  At hearing the review applicant advised that her parents stayed in Australia for one and half months on this visit, when her daughters were five and three years old.

22. There is no evidence before the Tribunal of any non-compliance with the visas previously held by the visa applicant or his wife, and the Tribunal is satisfied on the evidence provided that the visa applicant complied with the conditions of their previously held visas.  

23. 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(3):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

24. No indication was provided that the visa applicant has any intention of working in Australia, or of engaging in study or training in Australia for more than three months. The visa applicant is, as noted, 67 years of age; has never been anything other than a land-owning farmer in Venezuela; and the stated purpose of his intended trip is to visit his daughter and her family in Australia. The review applicant and her husband confirmed at hearing that the only purpose of the trip is for the visa applicant to spend time with family members in Australia.

25. From the information and evidence provided, having considered the circumstances of the application, the Tribunal is satisfied that the visa applicant would comply with the conditions to which the visa would be subject.

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

    All other relevant matters relevant to genuine intention to stay temporarily in Australia for the purpose for which the visa is granted

27. Evidence was provided to the Tribunal that the visa applicant and his wife own two farms in Venezuela, on which cattle for meat and dairy are raised, and some food crops, including maize, are grown. They each inherited farms, and one contains sites of historical national significance, being where ‘the Battle of Mosquiteros’ was fought between Simon Bolivar and General Jose Tomas Boves in 1813.

28. The parties advised at hearing that the visa applicant has no intention of retiring; that, indeed, Venezuelan farmers like the visa applicant do not share the same concept of retirement as Australians; and that while doing less hands-on work than when younger, the visa applicant is fit and strong and still rides his horses and manages the farms. They advised that the visa applicant’s son-in-law works with him on the farms, and that during absences he leaves the farms in his care and the care of long-term employees.  

29. Evidence was provided that the visa applicant is the holder of an entry visa issued by the United States of America, due to expire on 29 November 2019.  At hearing the review applicant advised that the visa applicant and his wife have held US entry visas for about ten years, and that her parents spend about a month each year in Miami, where they holiday and spend time with other family members. She advised that she has a number of cousins who have moved to the USA, and that her sisters in Venezuela often join her parents on their holidays in Miami.

30. At hearing the review applicant also advised that the visa applicant has travelled extensively, always with his wife, mostly to other Spanish speaking countries, including Mexico, Puerto Rico, and the Dominican Republic. She stated that her parents have always complied with visa conditions and, as far as she was aware, never experienced any visa problems.

31. The parties described how some members of the family, mainly the younger generation, nephews and nieces of the visa applicant, have left Venezuela to live in the USA. They advised that the visa applicant however speaks no English. They advised that the review applicant’s parents come from generations of land-owners and remain relatively well-off, and that the visa applicant has no intention of leaving his home country. They advised that, while looking forward to the end of the Maduro regime, the review applicant’s parents have tried to stay out of politics. She stated that they never lacked for food and other necessities because they could trade food from the farms, and purchase items such as shampoo and prescription medicines (the visa applicant takes pills for blood pressure) when in the USA.

32. Evidence was provided that the visa applicant holds a bank account in the USA with a balance of around AUD $16,000. On his application form the visa applicant stated that he and his wife would self-fund their visit to Australia. At hearing, the review applicant and her husband advised that the visa applicant would organise airfares, and stay with them in their home, as guests.

33. Evidence was provided that the review applicant has managed to renew her Venezuelan passport. She advised that she and her husband and daughters travelled to Miami for Christmas 2018, where they joined her parents, one of her sisters and her sister’s family. She acknowledged that she could take her husband and two daughters to Venezuela to spend time with her parents. She stated that in her opinion they would be safe during such a visit, but because of high levels of criminal activity, including kidnapping, in cities like Caracas, they would be restricted to staying indoors, at her parents’ home, on their farm. 

34. The review applicant advised that she wants her parents to see how she and her family now live in Australia, as they have moved into a new home since her parents’ previous visit in late 2016. She advised that the visit would be timed for later in the year, to coincide with her oldest daughter’s Catholic Church Confirmation.

35. The visa applicant has two other daughters, who have husbands and children, in Venezuela. One daughter, as noted, lives nearby, and her husband works on one of the family farms. Another, whom the review applicant advised the visa applicant saw weekly, lived several hours drive away, on another farm.  A letter was provided by this sister, in which she states that she and her children love and rely on her parents and no long-term separation from them is envisaged.

36. The Tribunal notes that the visa applicant has five grandchildren in Venezuela, besides his two grandchildren in Australia; that besides his two other daughters, the visa applicant and wife’s farms, home, siblings, lifelong friends and neighbours are in their home country; and that the review applicant advised that the visa applicant speaks no English, is not culturally familiar with Australia, and had to rely on their help, which he was not used to having to do, during trips they made to Sydney, Melbourne and Canberra during their previous visit. 

37. The review applicant and her husband were open and forthright at hearing, and the Tribunal accepted their testimony, including assurances that the visa applicant intends only to visit his daughter and family in Australia, and that he will return to Venezuela for traditional livelihood, family, cultural and social reasons.

38. While the situation in Venezuela remains unstable to the extent of providing incentive to its people to leave and not to return, the Tribunal is nevertheless satisfied, having considered the evidence, arguments and circumstances of the visa applicant, that in his case his incentives to return to his home country outweigh his incentives to remain in Australia.

39. 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.

40. As noted above, if the Tribunal had jurisdiction to review the matter of the decision to refuse to grant the review applicant’s mother, Mrs Estilita Maria Prieto Perez, a Visitor visa, it would similarly be satisfied that she genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted, and that the requirements of cl.600.211 were met.

    DECISION

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

    ·cl.600.211 of Schedule 2 to the Regulations.

    The Tribunal does not have jurisdiction in relation to the second named visa applicant

    Adrienne Millbank
    Member