Applicant: Maria Rosa Bulos Principal: Jesus Peralta IRT Reference: V93/00170 #number 2722 [1993] IRTA 2722 (12 October 1993)

The principal, a citizen of the Philippines, applied for a close family visitor visa (class 663) by lodging an "application for a visitor visa for Australia" (form 48) with the Manila post of the Department of Immigration, Local Government and Ethnic Affairs (the Department) on

22 April 1992. The purpose of this application was to visit his sister and her family for a short holiday and to tour around Australia. The period of stay sought in Australia was three months.

The application was assessed by the primary decision-maker on 22 April 1992 and refused. The basis of that refusal was the primary decision-maker's doubts about whether a genuine visit was intended. It was stated by the decision-maker in the decision record that:

I conclude that Mr PERALTA is unable to prove that a genuine holiday in Australia is intended.

The applicant fails relevant considerations in relation to the level of personal, financial and employment commitments which would ensure a return to the Philippines if granted a Class 663 visa."

On 29 June 1992, the applicant sought a review of the decision from the Migration Internal Review Office (MIRO). The application was assessed by a review officer at MIRO and on 1 December 1992, a decision was made affirming the primary decision for the same reasons. On 9 February 1993, an application for review of these decisions was lodged with the Tribunal.

The Tribunal notes that the Migration (1993) Regulations came into operation on 1 February 1993. However, this case is not subject to those regulations as the visa application was lodged before this date and subregulations 8.2(1)(a) and (b) state that any such application is to be decided in accordance with the law in force prior to 1 February 1993.

Given this, the criteria that need to be satisfied for an entitlement to a close family visitor visa (class 663), in force at the time the principal lodged his application were set out in regulation 89 and in item 46, Part 1 of Schedule 2 to the Migration Regulations 1989 (the Regulations). At the time the principal lodged his application for a close family visitor visa, regulation 89 provided as follows:

89. The additional criteria in relation to a close family visitor visa are the following criteria:

(a) the applicant is the parent, spouse, child, brother or sister of an Australian citizen or an Australian permanent resident;

(i) that the expressed intention of the applicant only to visit Australia is genuine; and

(ii) if the risk factor specified in regulation 9A is present in the applicant's case, that, having regard to the applicant's circumstances in the applicant's country of usual residence, there is very little likelihood that the applicant will remain in Australia after the expiry of any period during which the applicant might be authorised to remain in Australia;

(b) if the applicant intends to visit the Territory of Christmas Island or of Cocos (Keeling) Islands - the Administrator has confirmed that arrangements for the accommodation of the applicant during the visit have been made, being arrangements acceptable to the Administrator."

The specific alpha-numeric symbols set out in item 46 are further defined in Schedule 1 of the Regulations and can be conveniently summarised as follows:

B1 Assurance of Support necessary where required by the Minister.

J The applicant intends to make a genuine visit to Australia and has adequate funds for his or her support during the period of the visit.

K The applicant seeks the visa for temporary entry and does not intend to become a permanent resident of Australia.

The criteria which are most often in dispute in this visa class are those of J and K commonly referred to as the "bona fides" requirements. The Tribunal has stated on numerous occasions that, whilst decision makers must satisfy themselves that the purpose of the visit is solely for a temporary stay and not for some other goal, for example to study, work, or seek permanent residence, they need to be careful to distinguish between desire and intent. For example, visa applicants should not be penalised simply because they might have expressed a desire to live permanently in Australia, unless there is some evidence to suggest that their desire has coalesced into a firm intention to seek permanent residence during the currency of any visitor entry permit which might be granted.

When considering the factors which might assist decision makers to determine an applicant's intention, the factors are innumerable and their relevance and weight must depend on the circumstances of the individual case.

In addition to the legislative criteria set out above, the Minister for Immigration, Local Government and Ethnic Affairs issued two Policy Directions on 13 July 1992 under section 179 of the Migration Act 1958 (the Act) which entitles the Minister to give "general directions" to decision-makers: see Re Deng (IRT Decision No. N91/00418, delivered

23 September 1991) for a full discussion of the Policy Directions and further observations made in Re Jiang (IRT Decision No. V91/01253, delivered 13 May 1992).

Policy Direction No. 1 is concerned with the criterion of a "genuine visit" and Policy Direction 2 with that part of the criterion in Item J of Schedule 1 relating to whether the applicant "has adequate funds for his or her support during the period of the visit". Apart from listing factors regarded as indices of these matters, the Policy Directions also deal with the general approach to be adopted in determining applications for close family visitor visas.

Both Directions caution decision-makers on the weight to be accorded to "assertions, assurances or declarations" by or on behalf of an applicant which are said to be "not necessarily sufficient evidence" of bona fides or adequacy of funds.

A major feature of the first Direction is the list of "relevant considerations" with respect to determining whether an applicant intends a "genuine visit". Briefly, these comprise the level of personal, financial, employment and other commitments which may induce return to the country or usual residence; circumstances which may not induce return to the country of usual residence such as military service and unemployment; credibility in terms of character and conduct; the purpose and duration of the visit and other plans relating to the visit relative to an applicant's personal circumstances including any assistance available from the nominator; circumstances indicating a likelihood of an applicant engaging in employment in Australia; history of compliance with immigration law; and the record of an applicant's nominator in relation to migration matters. Finally, it should be noted that the second Direction clarifies the content and meaning of adequate funds for an applicant's support during the proposed visit which the Direction states is to include potential medical and hospital expenses.

The principles set out by the Tribunal in Re Saulog IRT Decision No.V90/00053 delivered 9 November 1990, regarding onus of proof are also applicable. It was observed in that case, that the traditional rules relating to onus of proof in adversarial systems have no role to play in the process of administrative decision making, which includes the process through which this Tribunal must go to reach a decision. There is no onus in the legal sense upon applicants to "prove" their entitlement to a visa but there may be occasions when an applicant bears a "common sense" onus of making information in his or her knowledge available to the decision maker or at least of offering a beginning of proof in those matters which will assist in reaching a decision in the applicant's favour. See Re Holbrook and the Australian Postal Commission (1983) 5 ALN 53; McDonald v The Director General of Social Security [1984] FCA 57; (1984) 6 ALD 6.

Whilst the onus of proof generally, remains that espoused by the Tribunal in Re Saulog (supra) the introduction of regulation 9A of the Regulations on 28 June 1991 changes the way in which certain visa applications in this class must be approached with respect to the standard of proof. Regulation 9A creates what is described as a "risk factor" for any applicant for a visa who has applied for permanent residence in Australia in the previous 5 years. The "risk factor" also applies to any applicant who has "one or more relevant characteristics" (based on nationality, marital status, age, sex, occupation, the class of visa, or the place of lodgement, or posting of the relevant application) in common with a class of persons shown by Departmental statistics to have overstayed their temporary visas.

Those "statistics" are based on movement records kept by the Department, and form the basis of a computer profile of intending visitors, based on what previous visitors of the same characteristics did, when they visited Australia. On

16 January 1992, the Secretary published such statistics of "approved risk factor characteristics" based currently, only on nationality, age and sex.

Where such a "risk factor" is present, a more onerous standard of proof as to the genuineness of any close family visit applies under regulation 89 than the previous standard which was the balance of probabilities. Where the "risk factor" applies, a decision maker is required to look at an "applicant's circumstances in his or her country of usual residence" and determine whether they are such that there is "very little likelihood" that the applicant will overstay his/her entry permit in Australia (see subregulation 89(aa)(ii) of the Regulations).

As was stated in Re Deng (supra), the risk factors themselves are not relevant to whether the applicant will overstay, but merely trigger a consideration of that possibility according to the "applicant's circumstances in his or her country of usual residence". In this case, the principal, Jesus Peralta, is in a class identified as "males aged 20 to 49" from the "Philippines". Accordingly, the risk factor applies in this case.

Apart from the documentary evidence contained on the Department's file which was provided to the Tribunal under section 122(2) of the Act, numerous written submissions were forwarded to the Tribunal by the applicant and a hearing was held on 15 June 1993 at which both the applicant and her spouse, Mr Charlie Bulos, gave oral evidence.

The following findings are taken from that evidence.

The applicant arrived in Australia in October 1989. She is married with three young children and she is employed as an instrument technician. Her spouse, is also employed and they own their own home. The applicant, the only daughter in a family of eight children, is the only member of the family not living in the Philippines. Her mother also resides in the Philippines and her father, a medical practitioner, was recently deceased. The applicant and her spouse stated that they are in a position to offer the principal accommodation and financial assistance during his stay in Australia. I accept that the applicant is in a position to give this assistance. The stated purpose of the principal's visit was to visit the applicant and her family and to tour some parts of Australia.

The principal was aged 31 at the time of application. He is single and resides with one of his brothers. The applicant stated that the principal had graduated with a Bachelor of Science degree in Zoology but had never worked in that field. Instead, he has been continuously employed for the last 5-6 years as a real estate agent. A letter from his employer dated 25 March 1992 on the Department's file confirms that he is employed and also confirms that he is granted leave to visit Australia and that 5 weeks of the leave is paid leave.

The applicant has also stated that her brother is a part beneficiary (not the sole beneficiary) of her deceased father's quite sizeable estate, and that he draws some income from that estate. There is also evidence on the Department's file that the principal holds some savings in the Rural Bank of Laura in the Philippines.

The applicant also stated that her brother had a girlfriend in the Philippines and that he often mentioned her in his letters to her. The applicant was not in a position to tell the Tribunal how committed her brother was to that relationship and there is no other available evidence about that relationship.

The applicant re-iterated that her brother was enthusiastic about his job and that he earned above average earnings. She submitted that this, together with the existence of his girlfriend, the fact that the bulk of his family was in the Philippines and the fact of his inheritance there, was more than enough incentive for the principal to return home to the Philippines.

Given the above evidence and the evidence contained in the Department's file, I believe there is little incentive for the principal to overstay any visitor visa granted to him. Accordingly I am satisfied that the principal intends a genuine visit to Australia and there is "very little likelihood" that he will remain in Australia after the expiry of any entry permit granted to him. He therefore meets the criteria set out in regulation 89 of the Regulations. I am also satisfied that he meets the remaining criteria for the grant of a close family visa (class 663). As a period of three months was sought, that too will be granted.

The Tribunal sets aside the decision under review and substitutes a decision that Jesus Peralta be granted a close family visitor visa (class 663) authorising a period of three months stay upon his arrival in Australia.

I certify that this and the nine preceding pages are a true copy of the Statement of Decision and Reasons for Decision of Pippy Watson, Presiding Member.