1502809 (Migration)

[2015] AATA 3032

1502809 (Migration) [2015] AATA 3032 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms THI THANH THOM NGUYEN

VISA APPLICANT:  Ms THI HOA NGUYEN

CASE NUMBER:  1502809

DIBP REFERENCE(S):  BCC2015/538895

MEMBER:Bruce Henry

DATE:2 July 2015

PLACE OF DECISION:  Brisbane

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 02 July 2015 at 3:45pm

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 18 February 2015 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 18 February 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 she did not intend a genuine visit to Australia.

5. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The Tribunal has before it the departmental file, which includes the application and sponsorship forms with supporting documents including a statutory declaration by the review applicant and a copy of her Australian permanent residence visa which was granted on 19 March 2010. The file also includes evidence that the review applicant has in excess of $45000 in a savings account with the Commonwealth Bank.

9. The application for the visa was also accompanied by documents showing that the visa applicant owns her own home in Vietnam, that she lives with her son and daughter in Hai Phong City, her mother, who is 96 years old, is widowed and also lives in Hai Phong City, and that the visa applicant has savings equivalent to about $40,000.

10. A copy of the delegate’s Decision Record was provided to the Tribunal by the applicant. The delegate states:

    The applicant’s family ties to Vietnam are limited to non-dependent relatives, namely two children aged 31 years and 26 years. While I acknowledge that these family members in Vietnam may offer some incentive to return, I am not satisfied that their presence allays concerns regarding the applicant’s intentions, due to concerns raised by the applicant’s absence of previous international travel.

    In response to the employment status of the applicant on form 1418, the applicant declared that she is retired in 2004. Therefore, I cannot consider employment as a factor that will induce the applicant to return to Vietnam within the validity of her visa.

    Section 7.2 of Genguide H, specifies that the term ‘visit’ refers to both the nature and duration of the applicant’s proposed visit. In assessing the applicant’s intentions for their intended visit to Australia, I have taken both the nature and duration of the applicant’s intended travel into account. In response to questions one and two on form 1418, the applicant indicated that they intend to travel to Australia for 3 months and on question 24 stated that their reason for travel is “I want to visit my daughter, son in law and also sightsee”. I note that the applicant’s reason for travel is inconsistent with the length of stay requested, and therefore have concerns that the applicant may intend to travel to Australia for reasons other than a genuine temporary stay.

    I acknowledge that the purpose of the applicant’s intended travel is to visit their family. While the applicant’s purpose of visit is noted, this in itself does not demonstrate that the applicant only intends a genuine temporary stay.

    After considering the information that was provided as evidence of the applicant’s purpose in visiting Australia, I am not satisfied that the applicant genuinely intends to visit Australia temporarily.

11. In the present case, the visa applicant seeks the visa for the purpose of visiting her daughter, the review applicant, who is an Australian permanent resident. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

12. 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)). As the delegate noted, she has not travelled outside Vietnam before, and the Tribunal is satisfied that she has never held an Australian visa. Clause 600.211(a) is therefore satisfied.

13. 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.600.612):

    ·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.

14. As noted above, the applicant has stated that she wishes to visit her daughter in Australia and to do some sightseeing. There is no information before the Tribunal that indicates that she intends to work or study in Australia, and the Tribunal is satisfied that she intends to comply with conditions 8101 and 8201. The Tribunal sees no basis whatsoever on the evidence for the delegate’s finding that the requested three month visit is inconsistent with the visa applicant’s expressed reasons for wanting to visit Australia, or that it raises ‘concerns that the applicant may intend to travel to Australia for reasons other than a genuine temporary stay’.

15. Given the evidence produced to the Department, which the Tribunal accepts, the Tribunal can see no basis for a finding that the visa applicant would not comply with the conditions to which her visa would be subject, and finds that cl.600.211(b) is satisfied.

16. The Tribunal is also required to consider all other matters (cl.600.211(c)) relevant to whether the visa applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. In this case, the Tribunal regards those matters as being the visa applicant’s family ties in Vietnam, being her two children and her mother, the fact that she owns her own home there, and that she has ample savings to support herself during her stay. The Tribunal also considers that it is relevant in this case to consider that the review applicant and her husband have indicated in statutory declarations produced to the Department that the visa applicant will stay with them while she is in Australia and that they are prepared to provide a surety to guarantee that she will comply with the terms of her visa should that be necessary.

17. The Tribunal considers that all of these matters support a conclusion that the visa applicant has a genuine intention to stay temporarily in Australia to visit her daughter as stated in the application. The Tribunal notes that the only ‘adverse’ matter referred to by the delegate was that the visa applicant has not travelled internationally before, and finds it very difficult to understand how an inference can be drawn from that fact that she does not intend a genuine visit. In the Tribunal’s view, such a conclusion is nonsensical.

18. 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

19. 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.

    Bruce Henry
    Member