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austlii:cth/MRTA/2000/1630
appellant. The Tribunal remitted the application for review to the Department of Immigration and Multicultural Affairs, directing that the visa applicant satisfied criteria 676.211, 676.212 and 676.221(2)(a),...
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The Tribunal accepted that the applicant’s mother could fund and support a visit of about three months. It considered his repeated earlier visits to Australia, including lengthy stays, but also considered that he had returned to the Philippines and complied with visa conditions, and that he had family, education and other connections there. The Tribunal found that the proposed visit was genuine on balance and sent the matter back to the Department with directions that specified visa criteria were met. The decision does not state that a visa was ultimately granted.
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This is a Migration Review Tribunal decision dated 19 June 2000 concerning a refused application for a Subclass 676 Short Stay (Visitor) visa. The visa applicant was Mr Nino Sicat, a Philippine national born on 13 February 1984. He was 16 at the time relevant to the review. His mother, Mrs Maria Marissa Sicat, was an Australian citizen and applied for review of the delegate’s refusal. The delegate had refused the visa on 8 July 1999, following an application made on 2 July 1999 ([1]–[2]).
The Tribunal accepted that the proposed purpose was for Nino to spend time with his mother and his brother Ryan in Australia. The proposed visit was approximately three months. Nino’s mother said she would pay the costs, provide accommodation, food and financial support, and had obtained medical insurance for the visit. She also provided evidence concerning her home and business, as well as support arrangements ([8]–[10], [12]–[13]).
The circumstances included Nino’s disability: he was born without legs because of the effects of Thalidomide. He lived in the Philippines, where he attended school, had a private tutor and had family and friends. His mother gave evidence that he did not want to live in Australia, had friends in the Philippines, and that she could not care for him full time in Australia because she had to work ([7], [10]).
A significant feature was Nino’s history of travel to Australia. He had made four previous visits. The periods identified by his mother included stays from September to December 1997, February to April 1998, June to December 1998, and January to June 1999 ([9]). The Tribunal noted that he had complied with visa conditions on those visits. It considered the length and frequency of the visits relevant, but did not treat them as conclusive evidence that the proposed visit was not genuine ([12], [14]).
The Tribunal remitted the application to the Department of Immigration and Multicultural Affairs with directions that the applicant satisfied criteria 676.211, 676.212 and 676.221(2)(a), (b) and (c) ([15]). The decision records the remittal and those findings; it does not state that a visa was subsequently granted.
The Tribunal began by identifying the relevant regulatory criteria in Schedule 2 of the Migration Regulations 1994. Under clause 676.211, the applicant had to seek to visit Australia for a qualifying purpose and either have adequate funds or meet an alternative provision. Clause 676.212 required an application made outside Australia to propose a stay of no more than three months. At the time of decision, clause 676.221(2) included continued satisfaction of those criteria and a requirement that the applicant satisfy the Minister that the expressed intention only to visit Australia was genuine ([4]).
On funding, the evidence supported the mother’s stated ability to meet the costs. She owned a beauty salon and a home, had provided supporting material, and said she would pay for the trip and the applicant’s living costs. The Tribunal also recorded that medical insurance was in place. It accepted that adequate funds were available and found clause 676.211(b)(i) satisfied ([8], [10], [13]).
The proposed stay also met the stated time limit. The Tribunal described the intended visit as approximately three months and expressly found that the proposed period did not exceed three months, satisfying clause 676.212 ([12]–[13]).
The central evaluative issue was whether the visit was genuine. The Tribunal considered circumstances it regarded as relevant under the policy direction, including the visit’s purpose and duration, personal responsibilities, the applicant’s financial circumstances, commitments that might encourage return, character and conduct, and immigration compliance history ([6], [12]). On the return side of the assessment, Nino attended school, had a private tutor, lived with family in the Philippines, and had friends there. His mother described the arrangements for his care in the Philippines and gave evidence that he did not wish to live in Australia ([10], [12]).
The Tribunal also examined facts that could point the other way. The applicant had visited Australia repeatedly and had spent substantial periods there. The Tribunal described this as “the troubling aspect” of the case. It recognised two possible inferences: that previous returns supported the view he would return again, but that repeated extended visits might also show a growing desire to be in Australia ([14]). It concluded that, at the time of decision, the evidence did not show that the applicant had moved from wanting extended visits to intending to reside in Australia.
The Tribunal’s finding was therefore an evaluative conclusion on the evidence, rather than a rule that repeat visits always support or always undermine genuineness. It found on balance that the present intention was genuine ([14]). It also recorded that the higher “very little likelihood” test did not apply because the applicant was not affected by the relevant risk factors in clause 4011 ([11]).
The decision describes the legal and policy framework as it stood for this 2000 review. It quotes the relevant Subclass 676 criteria, including the adequate-funds test, the three-month limit for an offshore application, and the genuine-intention requirement at decision time ([4]). It also explains that the Tribunal was bound by the Act, regulations and written ministerial directions under section 499, and that policy was to be considered and applied unless there were cogent reasons to depart from it ([3]).
For assessment of genuineness and funds, the Tribunal referred to Ministerial Policy Directions No. 1 and No. 2 of 1996. It stated that it had taken these directions into account. It also referred to Re Boceski, IRT Decision 4015, 13 July 1994, for the stated proposition that the legislation and policy directions did not require an overly suspicious attitude towards these applications ([6]). The text identifies this as a proposition drawn from an earlier tribunal decision; it does not supply a court citation or describe a later judicial treatment of Re Boceski.
The Tribunal also discussed the risk-factor framework. It explained that public interest criterion 4011 could require a more stringent “very little likelihood” assessment in relevant cases, but found that framework did not apply to this applicant ([5], [11]). This matters to reading the outcome: the Tribunal did not apply the heightened test and did not purport to make findings under it.
The decision records a change relevant to condition 8503. It states that legislative changes to section 41 of the Migration Act and regulation 2.05, effective from 1 March 2000, had been followed by a change in Departmental policy. The Tribunal considered the possibility that decision-makers might apply condition 8503, described in the cited PAM3 visitor visa guidance as a tool providing extra security where a genuine visit was intended ([14]). The decision does not say that condition 8503 was imposed in this case. Nor does it establish what the law or policy became after the decision. The “before and after” account that can safely be drawn from this source is limited to the historical changes it expressly mentions.
At [6], the Tribunal said that the law and policy directions did not impose “a duty on the decision-maker to adopt an overly suspicious attitude”. In plain English, the Tribunal said that the assessment should consider the relevant factors without assuming, merely because someone applies for a visitor visa, that their stated intention is not genuine. The proposition is attributed to Re Boceski, rather than presented as a newly formulated rule in this decision.
At [12], the Tribunal observed that the applicant’s several visits in the preceding two years did not, “in itself”, throw doubt on the genuineness of the proposed trip. This does not mean previous travel was irrelevant. The Tribunal considered the length and repetition of those visits, but assessed them alongside the applicant’s returns, compliance history and personal connections in the Philippines.
At [14], the Tribunal described the competing implications of the travel history. Previous returns could indicate that Nino would return after another visit. But repeated and extended visits could also indicate an increasing interest in being in Australia. The Tribunal’s assessment was that the evidence had not yet established an intention to reside in Australia, and it found the proposed visit genuine on balance.
At [15], the formal disposition was a remittal with directions that specified criteria were satisfied. In plain English, the Tribunal resolved those stated issues in the applicant’s favour and returned the matter to the Department. The wording should not be expanded into a claim that the visa was granted, because the decision records no such later outcome.
The decision is most directly relevant as an example of how this Tribunal assessed a visitor application where an applicant had made multiple earlier visits, including lengthy stays, but had returned and complied with visa conditions. The central factual tension was between evidence of repeated time in Australia and evidence of continuing personal, educational and family connections in the Philippines ([9]–[14]).
It also illustrates an application supported by a close family member in Australia who offered to meet the expenses and arranged accommodation, living support and medical insurance. Those facts were material to the findings on funds and practical support, but the decision does not say that such support alone establishes a genuine intention to visit ([8], [13]).
The decision involved a minor applicant with a disability and described particular family-care arrangements in both Australia and the Philippines. The Tribunal considered the applicant’s age-related public interest criteria and the risk-factor provisions in the legal framework, but found that the relevant clause 4011 risk factors did not apply ([5], [11]). The decision should therefore be read as a fact-specific assessment, not a general rule that disability, family support, repeated visits, or a particular family arrangement determines the outcome.
The source is a Tribunal decision applying the provisions identified in its reasons. It is not, on the information supplied, a later court judgment explaining how subsequent courts treated the reasoning. Its value for identifying a relevant factual pattern should not be mistaken for a statement of current migration law.
The judgment text supplies no information about later court decisions considering, following, distinguishing or rejecting Sicat. It would therefore be unsupported to describe any later judicial treatment or claim that this decision established binding precedent.
The only earlier decision expressly mentioned is Re Boceski, IRT Decision 4015, 13 July 1994. The Tribunal referred to it at [6] for the proposition that the legislation and policy directions did not require an overly suspicious approach. The text does not provide details of Re Boceski beyond that reference.
The decision is a Migration Review Tribunal determination, and its disposition was to remit this particular application with specified directions. On the source available here, the safe account is that it records the Tribunal’s reasoning in this individual review. Whether, and how, later decision-makers or courts have treated it cannot be determined from the judgment supplied.
The judgment does not state what the Department did after the remittal, whether the visa was ultimately granted, or whether any additional criterion affected the later decision. It directs that specified criteria were satisfied, but does not state that every requirement for visa grant was resolved by the Tribunal ([15]).
The Tribunal also does not identify in the extract the full evidence underlying every part of the support arrangements, beyond describing the material and findings at [8]–[10] and [13]. The decision summarises the evidence it considered; it is not a complete record of all documents or submissions.
The reasons discuss condition 8503 as a possibility and refer to policy change after 1 March 2000, but do not say that this condition was applied to Nino’s application ([14]). The text likewise does not provide subsequent regulatory or policy developments.
Finally, the decision’s assessment depended on the applicant’s age, travel history, family circumstances, schooling, support and circumstances in the Philippines as understood in June 2000. It does not answer how a different set of facts would be evaluated, nor does it provide a prediction about any other application.
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1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the delegate). Mr Nino Sicat (the 'visa applicant'), a national of the Philippines, born on 13 February 1984, applied for a Short Stay (Visitor) (Class TR) visa on 2 July 1999. The delegate's decision to refuse to grant the visa was made on 8 July 1999.
2. Mrs Maria Marissa Sicat (the `review applicant'), mother of the visa applicant, lodged a valid application for review to the Tribunal on 8 September 1999. She is an Australian citizen. The decision is reviewable by the Tribunal and the application for review has been validly made by a person with standing to apply for review.
3. The Migration Act 1958 (the Act) and the various regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural Affairs (DIMA). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.
4. The criteria relevant to the visa at issue in this review can be found in Schedule 2 of the Regulations. As far as relevant, these stated at the time of application:
676.21 Criteria to be satisfied at time of application
(a) seeks to visit Australia, or remain in Australia as a visitor:
(i) for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant; or
(ii) for a purpose other than a purpose related to business or medical treatment; and
(i) has adequate funds, or access to adequate funds, for personal support during the period of the visit; or
(ii) meets the requirements of subclause 676.221 (4).
676.212 If the application is made outside Australia, the period of stay in Australia proposed in the application does not exceed 3 months.
676.22 Criteria to be satisfied at time of decision
(a) in the case of an applicant mentioned in clause 676.212A -- meets the requirements of subclause (5); and
(b) in any other case -- meets the requirements of subclause (2), (3) or (4).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant continues to satisfy the criterion in clause 676.211; and
(b) if the application is made outside Australia, the applicant continues to satisfy the criterion in clause 676.212; and
(c) the applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine; and
(d) the Minister is satisfied that the grant of the visa would not prejudice the rights and interests of any person who has custody or guardianship of, or access to, the applicant; and
(e) the applicant satisfies public interest criteria 4001 to 4005, 4011, 4012, 4013 and 4014; and
(f) if the applicant is applying outside Australia and has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002; and
5. It is a requirement for this subclass of visa that the visa applicant satisfy public interest criteria 4001 to 4005 and criterion 4011 to 4014. Public interest criteria 4001 to 4005 deal with the health and character of the Visa Applicant. Public interest criterion 4011 refers to the way an application is to be treated if the visa applicant is affected by a risk factor. Where the visa applicant is affected by this risk factor a more stringent test applies. The decision-maker is called upon to be satisfied that there is "very little likelihood that the applicant will remain after the expiry of any period during which the applicant might be authorised to remain after entry" Criterion 4012 is directed at applicants under 18, while criteria 4013 and 4014 treat particular aspects of the risk factor scheme.
6. The Minister has issued relevant Policy Directions - No 1 of 1996 and No 2 of 1996 pursuant to section 499 of the Migration Act. These Directions took effect from 17 September 1996. They provide a guide to appropriate considerations to test the genuineness of the proposed visit and the availability and adequacy of funds available to the visa applicant, including appropriate medical insurance. This Tribunal has taken these directions into account. But as was stated in Re Boceski, (IRT Decision 4015, 13 July 1994) neither the Legislation nor the Policy Directions (an earlier version of the current Directions) impose a duty on the decision-maker to adopt an overly suspicious attitude to these kinds of applications.
7. The Tribunal had before it material on its own file and the Departmental file. This material can be summarised as follows. The visa applicant is a 16-year-old, national of the Philippines. He was born without legs because of the effects of Thalidomide. He lives with his father in the Philippines. He has made four previous trips to Australia to visit his mother and his brother who lives here, Ryan.
8. His mother, the review applicant, is an Australian citizen and lives here. She says she will provide for all the costs of the visit. She has for many years supported her son financially and in other ways. The review applicant owns a beauty salon. She has provided a property assessment of the worth of her residence at about $250,000. The review applicant has submitted letters stating that she will provide the visa applicant with accommodation, food and financial support during his stay in Australia. Supporting evidence has been submitted to substantiate this claim. The review applicant has obtained medical insurance for the visa applicant for the duration of his stay. The review applicant says that it is not possible for her to visit her son in the Philippines, as she has business commitments in Australia. There is on file a copy of an agreement between the parents as to caring and financial responsibilities of the parents to the visa applicant.
9. A hearing was held in this matter on 19 June 2000. Evidence was taken from the review applicant. She said that the purpose of the trip is so that Nino (the visa applicant) can spend time with her and his brother Ryan in Australia. She pointed to her assets, she owns her own business (she is a beautician) and home, as evidence of her ability to pay for the trip. Nino has previously visited Australia four times and always abided by conditions. He was here between September to December 1997, February to April 1998, June to December 1998 and January to June 1999.
10. She said that her former husband has remarried and Nino lives with his father and his new wife. At other times he lives with her oldest son Jeffrey (now 25 with 6 children). She pays for an assistant who helps Nino with practical things. Nino has no additional health problems because of his disabilities. He attends school but in addition she has employed a private tutor for him. He plans to work in the computer industry. She will pay for his ticket. Her present husband worked for Qantas and they have access to cheap tickets. She said that Nino does not want to live in Australia. He has his friends in the Philippines. And his mother cannot look after him here full time, as she has to work. When he was here in the past the mother said she employed a tutor for him, at times. She was asked about the copy agreement on file with her former husband concerning Nino's upbringing (F 8). This commences, "while their son Nino resides in the Philippines". She explained this as referring to what happens to him there rather than when he is visiting here. It did not indicate that they envisaged that he would not live in the Philippines at some point of time but elsewhere, possibly here.
11. Despite reference to this in the primary decision this is not a matter in which the visa applicant is affected by the risk factors referred to in clause 4011 (or affected by any of the other matters in that clause). Accordingly the higher standard of "very little likelihood" does not apply to this case. However the Minister has issued additional directions under section 499 Policy Direction No. 1 of 1996 speaks to `genuine visit' and Policy Direction No. 2 of the 1996 to `Adequate Funds'. Having regard to the criteria set out in the legislation and the consideration set out in those directions, the issues raised by this matter are discussed below.
12. The purpose of the visa applicant's visit, the duration of stay proposed and any other plans which the visa applicant has made for the visit, relative to the visa applicant's personal responsibilities and the financial means and earnings and the level of support assistance available to the visa applicant.
s The visa applicant intends to visit Australia for approximately 3 months to be reunited with his mother and his brother who live in Australia. The review applicant will bear all the financial costs of the visit, as she has on previous trips. The visa applicant is a student and is not in paid employment.
The level of personal, financial, employment and other commitments which may induce the visa applicant to return. Circumstances which may induce the visa applicant not to return
s As far as I can tell the visa applicant has a settled life in the Philippines. He attends school and has the services of a private tutor. He has a father, brother and friends in the Philippines. His parents have an agreement as to the upbringing of their son in the Philippines.
The credibility of the visa applicant in terms of character and conduct
s There is no evidence, which reflects adversely on the character or conduct of the visa applicant. As mentioned, the visa applicant has made four previous visits to Australia. During the visit made in June 1998 the visa applicant arrived on a 676 short stay visitor visa and later applied for an extension, which was granted. On this occasion the visa applicant remained in Australia for nearly 6 months. And soon after another visit was made in January 1999 on a 686 long stay visitor visa. On all occasions he has abided by visa conditions. That he has been here a number of times over the past two years does not, in itself, throw doubt upon this planned trip not being a genuine visit.
Information disclosed in the visa application or otherwise obtained which indicates a reasonable likelihood that the applicant will not abide by visa conditions. The history of compliance with or breach of immigration law by the visa applicant. The history of dealings with the Department of any person or persons in Australia or usually resident in Australia who supports or support the visit of the visa applicant
13. The necessity of obtaining medical insurance for the visa applicant was discussed with the review applicant. The Tribunal is satisfied that these arrangements are in place. I accept that there is a good reason for this visit. I accept that the mother is in a position to fund the trip. And, as discussed below, I accept that there is sufficient incentive for the visa applicant to return to the Philippines. In these circumstances and in the light of the matters discussed above, I find the following. The visa applicant seeks to visit Australia as a visitor and that adequate funds are available for this. I find that 676.211(b)(i) satisfied. Further, the period of stay in Australia proposed in the application does not exceed 3 months (ie 676.212 is satisfied).
14. As to the genuineness of the visit for reasons given above I find on balance that the visa applicant's intention to visit Australia as a visitor is genuine. The troubling aspect of this case is the periods of time that he has previously spent in Australia. On the one hand this shows that on each occasion he has returned home at the expiration of the visa in the past, and thus will do so this time. On the other hand, this also shows that he has had over the last few years a desire and an interest in being in Australia for extended periods of time. As I mention above this is still consistent with this being a genuine visit. But at some stage extended visits here turn into an intention to reside here, rather than the Philippines. I do not consider at present that this stage has been reached. I have taken into account the possibilities that now exist for applying condition 8503, in cases such as this one. This was discussed at the hearing. The Department policy with regard to this condition has changed since 1 March 2000, following the legislative changes to s 41 Migration Act and regulation 2.05. In PAM 3, Generic Guidelines H - Visitor Visas, it is said that decision-makers should treat this condition as a valuable tool to provide extra security that a genuine visit is intended. In making my decision I have taken into account the possibility of the Departmental decision-makers applying condition 8503 if they thought it was appropriate.
15. The Tribunal remits this application for review to the Department of Immigration and Multicultural affairs with the direction that the visa applicant satisfies criteria 676.211, 676.212, 676.221(2)(a), (b), (c) associated with Subclass 676 Short Stay (Visitor) visa.
The Tribunal remitted the application for review to the Department of Immigration and Multicultural Affairs, directing that the visa applicant satisfied criteria 676.211, 676.212 and 676.221(2)(a), (b) and (c).