Zamora (Migration)

[2024] AATA 751

Zamora (Migration) [2024] AATA 751 (27 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Emelita Rizon Zamora

VISA APPLICANT:  Mr Kenn Zamora Monte De Ramos

CASE NUMBER:  2303706

HOME AFFAIRS REFERENCE(S):          BCC2023/1209640

MEMBER:Stephen Witts

DATE:27 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 27 March 2024 at 9:05am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – visiting family – genuine temporary entrant and compliance with conditions – incentives to return or remain – young, single man, unemployed with no dependent family members – no travel history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 10 March 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 17 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 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 (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 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 applicant genuinely intends a temporary visit to Australia.

5. The review applicant appeared before the Tribunal on 26 March 2024 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant (the applicant), and from Mr Gregory Squires, the review applicant’s husband and godfather of the applicant, and Ms Loleta Monte de Ramos, the applicant’s mother.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 visiting family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

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)).

11. The Tribunal notes that there is no evidence before it of any substantive visa breaches by the applicants.

12. The Tribunal has considered all material before it including evidence provided prior to the hearing evidence given at the hearing.

13. The Tribunal notes it has been provided with a copy of the relevant delegate’s decision dated 10 March 2023 by the applicants.

14. In this decision it was asserted by the delegate that it considered the circumstances of the applicant that would provide an incentive for him to return to his home country and contended that the applicant lacked dependent family members in the Philippines and therefore his family ties were a factor. It also asserted that the applicant had declared that he is unemployed, and that due to these and other factors he lacked an incentive to return to his home country of the Philippines.

15. The Tribunal notes that it has considered evidence and material provided by the applicants prior to the hearing.

16. Included was a submission dated 26 January 2023 from the review applicant stating that she would like her nephew to visit them in Australia on a tourist visa for a minimum of 12 months and that during this time they will support him.

17. Included was a birth certificate for the applicant indicating that he was born on 30 September 2002, the applicant’s parents’ marriage certificate issued in 2002, a utility bill from the Philippines in the name of the applicant’s father, Mr Carlito Monte De Ramos, dated 15 January 2024, a permit for a computer shop in the name of the applicant’s mother dated valid until 31 December 2024, and a utility account also in the name of the applicant’s mother dated 4 January 2024.

18. At the hearing the Tribunal had a discussion with the applicants and their witnesses regarding the application.

19. The applicant stated that he has never visited Australia before and nor has he ever made any other visa applications to come to Australia. He stated that he does not have any other history of travel and has never left his home country of the Philippines. He stated that he is an only child. He stated that he finished year 12 senior high school and did not go to college and is still unemployed but that he does help in his mother’s business, an Internet café, from time to time. He stated that he is a single man with no dependents and that he lives at home with his parents. He stated that he does have a bank account with funds available. He stated that he still lives in his hometown and has many friends. He stated that he last saw his aunt, the review applicant, for a few days last year. He stated that he only intends to visit Australia on a short-term basis.

20. The review applicant stated that she first came here to Australia in 2011 on a spousal visa and that she has no other family in Australia other than her husband. She stated that she has family in the Philippines including two brothers and five sisters. She stated that she did not have any children. She stated that one other member of her family has visited Australia, her niece, in 2017, and that she left Australia within the currency of her visitor visa.

21. The review applicant’s husband stated that they live in an apartment that they own in Mermaid Beach on the Gold Coast and that he works in the maintenance and cleaning industry in resorts and that his wife works in accounts keeping, and that he would ensure that his godson will return home. He stated that he does not have any children of his own and wants to give his godson some life experience in Australia. He also stated that working in hospitality he might be able to assist the applicant in finding some work for a while.

22. The Tribunal has considered this matter very carefully noting in particular that the applicant is a young single man without any dependents and without a job other than occasionally, he stated, helping in his mother’s business. It is also the case that the applicant did not provide any evidence of any assets held in his home country except for his bank account and nor did he put forward any evidence of any responsibilities to meet in his home country.

23. It is also the case that there is no evidence of the applicant ever undertaking any travel outside his home country of the Philippines so there is no assessment that can be made regarding him having returned home from a comparable beneficial economic framework in the past. The Tribunal notes that the review applicant’s niece visited Australia in 2017 and returned within the currency of her visa but finds that this does not necessarily predetermine what the applicant will do should he come to Australia.

24. The Tribunal notes the submission of the applicant’s godfather that he will go home and does find the godfather’s evidence to be sincerely put and credible however the Tribunal is concerned that once here in Australia the applicant’s position may change.

25. On that basis the Tribunal finds that it is very likely that should the applicant come here to Australia on a visitor visa that he might seek to stay on a more long-term or indefinite basis.

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

27. For the above reasons the Tribunal is not 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 not met.

    DECISION

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

    Stephen Witts
    Member