Weymouth (Migration)

[2019] AATA 1468

Weymouth (Migration) [2019] AATA 1468 (8 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Raymond Edward Weymouth

VISA APPLICANT:  Miss Maria Diyalayala Weymouth

CASE NUMBER:  1730715

HOME AFFAIRS REFERENCE(S):           CLF2017/121779

MEMBER:Frances Simmons

DATE:8 January 2019

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 08 January 2019 at 5:44pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – plan to visit family – initial contact with some relatives – tertiary studies enrolment in Fiji – adoption order – offer to pay a security bond – awareness of consequences of breaching visa conditions – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 347
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.224, 600.225

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 16 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 3 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 that the visa applicant genuinely intended to travel to Australia temporarily for the purpose for which the visa would be granted.

5. The review applicant appeared before the Tribunal on 7 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Miss Elisabeta Maramalailai Weymouth (the adoptive mother of the visa applicant) and the visa applicant.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Application to Department

7. The visa applicant is a Fijian citizen born on 4 August 1999 in Savusavu Cakaudrove, Fiji. At the time she applied for the visitor visa she was a student in her final year of study at St Bedes College.  According to this application, she would like to travel to Australia to visit her parents, the review applicant and Elisabeta Maramalailai Weymoth, as well as her Australian grandmother, who she has never met, and spend her Christmas holidays with them.  She will be financially supported by her father, Raymond Edward Weymouth for the duration of her stay. She proposes to visit Australia from 4 November 2017 to 4 January 2018 in the company of her uncle, Rafaele Kavuru Cama.

8. The visa application is accompanied by a copy of the visa applicant’s passport and a letter from Mr Raymond Edward Weymouth stating he would like to sponsor his daughter to visit her family in Australia for her holidays and Christmas and stating that he will be responsible for her accommodation and financial support, a bank statement in the name of Mr Weymouth, and recent payslips showing evidence of Mr Weymouth’s income as well as a copy of his passport which records that he is an Australian citizen. The visa application is also accompanied by documentation from St Bede’s college in Fiji confirming that in 2017 the visa applicant was a full-time student at this institution.

   Application for review

9. In addition to the information on the Department’s file, the tribunal has considered the following documentation:

   a.Adoption order made by the first class magistrates court at Nasini sitting as the family court in adoption case no. 26 of 2011 whereby it is ordered that the visa applicant, who is the child of Mereiana Dimaqalau Cama, is adopted by Raymond Edward Weymouth and Elisabeta Maramalailai.

   b.The visa applicant’s birth certificate which records that she was born in Fiji on 4 August 1999 and is the child of her adoptive parents.

   c.Submissions from the review applicant dated 29 November 2017. In summary, the review applicant submits:

   i.The visa applicant will return to Fiji at the end of her permitted stay and the review applicant is willing to pay a security bond.

   ii.The visa applicant has previously applied for permanent migration to Australia. Her circumstances have changed.

   iii.The visa applicant graduated from High School first in year in 2017 and is about to commence university in Fiji.

   iv.The visa applicant was raised with the son (Leone Cama) of the review applicant’s wife from the time she was born until Leone migrated to Australia in 2007. Leone now has a family of his own who the visa applicant wishes to meet.

   v.The family do not want Maria to overstay and live a ‘false life’ in Australia without rights and the constant worry of being caught by immigration officials

   vi.Maria’s life is in Fiji, where she has significant family ties, and study commitments.  Thereview applicant and his wife will visit her as often as possible.

   d.Certificates awarded to the visa applicant for attaining first position in the annual examination 2017 at St Bedes College, her service as Head Girl and her achievements in physics, chemistry and biology.

   e.The visa applicant’s acceptance letter for the Bachelor of Physiotherapy at Fiji National University commencing in February 2018 for a period of four years and invoices relating to tuition fees.

   f.Documentation relating to the visa applicant’s enrolment in the second year of Bachelor of Physiotherapy degree at Fiji National University in 2019.

10. Based on the submitted court order and birth certificate and the Tribunal's overall favourable credibility finding, on evidence before it, the Tribunal is satisfied formal adoption arrangements of the visa applicant were made in accordance Fijian laws which recognise the review applicant as the parent of the visa applicant.

11. Based on the evidence before the Tribunal, the Tribunal is satisfied that the review applicant is the adoptive parent of the visa applicant and is the visa applicant's Australian relative for the purposes of s.347(2) of the Act.

    Issue on review

12. 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.

13. In the present case, the visa applicant seeks the visa for the purposes of visiting her adoptive parents. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

14. 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)).

15. The visa applicant has not previously travelled to Australia. Accordingly, there is no evidence of non-compliance or compliance with conditions of previously held visa.

16. The sponsorship requirement in the Tourist stream applies only if the applicant intends to visit certain kinds of relatives, and if the Minister has required the applicant (and each other applicant who is a member of the applicant's family unit, or in relation to whom the applicant is a member of the family unit) to be sponsored by a specified Australian relative under cl. 600.224 (1). This capacity of the Minister to request sponsorship is intended to provide additional flexibility in relation to applicants who may otherwise not meet the visa criteria (see Explanatory Statement to SLI 2013, No. 32, p.18). One effect of requiring sponsorship is to engage the security requirement criterion in cl.600.225.

17. The review applicant has indicated to the Tribunal that he is prepared to sponsor the visa applicant and he has provided evidence of his financial capacity to do so. On this basis the Tribunal is satisfied that the applicant is willing and able to provide a financial security if requested. The Tribunal has discretion to require a sponsorship in accordance with cl. 600.224(1) and in the circumstances of the present case, considers it appropriate to do so. On this basis, the applicant meets cl.600.224(1).

18. The Tribunal will leave it to the visa applicant to make arrangements to provide the sponsorship as required to meet cl.600.224(2) and to the Department upon remittal to consider whether to approve the sponsorship as made (cl.600.224(3)).

19. Having determined to require the visa applicant to be sponsored, the Tribunal will now go on to consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)).

20. The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.612):

    ·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.

21. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In doing so, the Tribunal considered, but is not bound by, the Department's policy guidance contained in its Procedures Advice Manual (PAM3).

22. The Tribunal found the review applicant and his wife, Elisabeta Maramalailai Weymoth to be credible witnesses. While the quality of the telephone line was sometimes poor, the Tribunal is also satisfied that the visa applicant’s responses to the Tribunal questions were detailed, credible and consistent with the information and documentation provided to the Tribunal by her adoptive parents.

23. The Tribunal accepts that the review applicant is an Australian citizen and that his wife, Miss Elisabeta Maramalailai Weymouth, who was born in Fiji in 1964, acquired Australian permanent residency and then Australian citizenship as a result of partner migration.  

24. The Tribunal accepts that the visa applicant is a Fijian citizen born in Suva, Fiji on 4 August 1999. Based on the documentary evidence, including the adoption order of the Magistrates Court at Nasinu and the birth certificate of the visa applicant, and the consistent oral evidence of the parties to the review application, the Tribunal accepts that the visa applicant is the adopted child of the review applicant and Miss Elisabeta Maramalailai Weymoth. The Tribunal therefore accepts, based on the oral and documentary evidence before it, that the review applicant and Ms Elisabeta Maramalailai Weymoth adopted the visa applicant in accordance with Fijian law 2011. 

25. The review applicant and Ms Elisabeta Maramalailai Weymoth gave evidence that the visa applicant was the biological daughter of the Ms Maramalailai Weymouth’s sister. The Tribunal accepts that Ms Elisabeta Maramalailai Weymoth is the visa applicant’s adoptive mother and biological aunt. On the evidence before it, the Tribunal accepts that Ms Elisabeta Maramalailai Weymouth raised Maria from when she born in 1999 until 2007 when Ms Weymouth migrated to Australia. The Tribunal heard that the visa applicant’s biological father did not ever want or seek any role in raising the visa applicant and that her biological mother’s new partner also did not want to support the visa applicant and that in the past Ms Weymouth’s relationship with her biological mother was sometimes strained. The Tribunal accepts that since 2007 Ms Weymouth has returned to Fiji regularly to see Maria[1] and that she also speaks to Maria regularly, often on a daily basis.  The Tribunal accepts that the review applicant and Ms Weymouth adopted Maria Weymouth because they wanted to care for her as their child.

    [1] This is consistent with Departmental records.

26. The visa applicant and her adoptive mother gave consistent evidence about their relationship. The Tribunal accepts that they are very close. The Tribunal accepts that Ms Elisabeta Maramalailai Weymoth resides in Hay, New South Wales with her husband, the review applicant. The Tribunal accepts that her adoptive parents provide her with financial assistance in relation to costs of her education at Fiji National University.  The Tribunal accepts that the visa applicant wants to visit Australia to see her adoptive parents.

27. The Tribunal accepts the review applicant’s assurances that the visa applicant will be fully accommodated and supported by the review applicant and his wife while in Australia. The review applicant states that he is currently employed as a supermarket manager at Foodworks in Hay and has provided evidence of employment and a bank statement showing saving in the sum of $10 000.  There is no indication before the Tribunal that the visa applicant intends or needs to work during her proposed visit to Australia. In these circumstances the Tribunal is satisfied she intends to comply with condition 8101. The visa applicant is enrolled in a university degree in Fiji, there is nothing to suggest that she has any intention to study in Australia, and furthermore she does not propose to visit Australia for more than three months. The Tribunal is satisfied she intends to comply with condition 8201.

28. The Tribunal accepts the applicant’s adoptive parents reside in Australia and that this could be an incentive for the visa applicant to remain in Australia beyond the period of her permitted stay. The Tribunal acknowledges that the visa applicant has previously applied for an adopted child migrant visa (subclass 102) and that this application was refused in March 2017 (ICSE record indicate that this application was refused because her adopted parents had not resided overseas for 12 months at the time of the visa application and this is consistent with the evidence of the parties). The Tribunal acknowledges that at this time the visa applicant was seeking to migrate to Australia on a permanent basis.

29. The Tribunal accepts that the visa applicant is now a nineteen year old adult woman who is enrolled in her second year of a physiotherapy degree at Fiji National University. She completed her first year of study at this institution in 2018 and she has provided evidence of her enrolment in 2019. The parties told the Tribunal that she plans to complete a degree in physiotherapy and then undertake further training as a doctor. The Tribunal notes that the application that was made for her to migrate to Australia on a permanent basis was made when she was still a child and before she completed her high school education in Fiji. The Tribunal notes that PAM3 Guidelines states:

    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.

    If the period of stay requested raises concerns about an applicant’s ability to meet the genuine temporary stay requirement, case officers should consider whether a shorter period of stay would enable them to be satisfied that the visa criteria are met.[2]

    [2] PAM3: GenGuideH – Visitor visas – Visa application and related procedures.

30. In this case the visa applicant initially applied to visit Australia from 4/11/2017 to 4/01/2018. The Tribunal was told that she now wants to visit Australia for a short period of time (less than a month) during a university break during the Easter period (if she held a visa at that time) or at Christmas. The Tribunal finds the applicants’ evidence about the proposed period of stay consistent with their evidence that the visa applicant is committed to completing her studies at Fiji National University.

31. The Tribunal accepts that the visa applicant has completed her high school education in 2017 and that in 2018 she commenced a Bachelor of Physiotherapy at Fiji National University and that she is committed to completing her university studies. Tribunal accepts that she is a diligent, bright and committed student. The Tribunal accepts that while she is studying the visa applicant resides on university campus. The Tribunal accepts that the visa applicant is single.

32. The Tribunal was told that in the past the visa applicant has had a difficult relationship with her birth mother (who is the sister of her adoptive mother) and her biological father has never been a part of her life. The review applicant and his wife told the Tribunal that her relationship with her biological mother is improving and that Maria lives with her grandmother, her biological mother, and her biological mother’s partner when she is on holiday from her university studies. The Tribunal accepts that the visa applicant has family ties and support networks in Fiji.

33. The Tribunal has considered the DFAT country information report on Fiji published in September 2017 and the available evidence about the visa applicant’s circumstances in Fiji. There is nothing before the Tribunal to indicate that she has experienced any difficulty living in Fiji or that she is at risk of any harm in Fiji.

34. The Tribunal accepts that, given her family ties to Australia, the visa applicant may wish to visit Australia on subsequent occasions in the future. The Tribunal is persuaded by the applicants’ evidence that the visa applicant does not want to breach the visa conditions because she is well aware of the potential adverse consequences any breach of visa conditions may have on any future visa applications she may make as well as any applications that may be made by other family members.  The Tribunal accepts that the visa applicant wishes to establish a record of compliance with Australian immigration laws.

35. The evidence before the Tribunal indicates that the visa applicant’s adoptive mother has a history of complying with Australian immigration laws and is now an Australian citizen. The visa applicant’s maternal uncle, Rafaele Kavuru Cama (DOB 25/10/1975), also travelled to Australia in 2017 and 2018 on a visitor visa and on both occasions he departed before the end of his permitted stay in compliance with the conditions of his visitor visa.[3]

    [3] This is consistent with Departmental movement records

36. The Tribunal has also placed favourable weight on the fact that the review applicant is willing to provide a security bond, which would provide an additional incentive for compliance. 

37. 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

38. 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.

    Frances Simmons
    Member