1508078 (Migration)

[2015] AATA 3462

1508078 (Migration) [2015] AATA 3462 (5 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Phuong Nguyen

VISA APPLICANT:  Mr Van Phuc Vu

CASE NUMBER:  1508078

DIBP REFERENCE(S):  BCC2015/1406146

MEMBER:Adrian Ho

DATE:5 October 2015

PLACE OF DECISION:  Melbourne

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 05 October 2015 at 4:08pm

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 May 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 4 May 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.

5. The review applicant appeared before the Tribunal on 5 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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. In the present case, the visa applicant seeks the visa for the purposes of visiting his claimed partner. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

9. 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)).

10. On the evidence, the visa applicant has never held any type of visa for Australia.  There are no relevant considerations pertaining to cl.600.211(a).

11. 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.

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

    Findings

13. The review applicant conceded at hearing that she had arrived on a temporary visa in 1999 and overstayed that visa and was unlawful until 2001, when she applied for a partner visa, through which she was eventually granted permanent residence. 

14. Her explanation was that she thought she was on a student visa and did not know she was unlawful until she and her first husband sought to apply for a partner visa.

15. On her own evidence, it was her intention to seek a student visa only after arriving in Australia, and she did not do so.  Therefore, the tribunal does not accept that she believed she was on a student visa while she was unlawfully in Australia.

16. At best, she was reckless as to her visa status.  She was however around 17 years old when she first arrived, some 16 years ago.  While that may be acknowledged, her immigration history is a factor which weighs against her and the visa applicant when the tribunal now considers the visa applicant’s intentions and whether they are genuinely for a temporary visit, as was suggested at hearing.

17. The tribunal also acknowledged at hearing that the visa applicant’s circumstances a different from the review applicant’s own circumstances when she arrived.  The tribunal has confirmed in Department computer records that the visa applicant has a pending offshore partner visa application on foot.  He has therefore indicated his intentions to obtain a partner visa based on the claimed marriage in January this year.

18. He indicates he will leave behind two children in Vietnam from a previous relationship and a business.

19. The review applicant’s stated wish is for her claimed husband to see her life in Australia and be introduced to her children, of her previous marriage.  That marriage, she says, ceased in 2008 and she met the visa applicant in 2013.  She says he is the friend of her younger brother.

20. The tribunal considers that the fact that the visa applicant will need to be offshore in order to finalise the offshore partner visa application is a factor incentivising him comply with the above conditions and to return to Vietnam.  So too are his children in Vietnam. 

21. The review applicant offered to place a security of $20000 for the grant of the visa.  That provides the tribunal will some additional confidence that the visa applicant intends to comply with the above conditions.

22. 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.

23. Clause 600.211 requires the tribunal to consider the visa applicant’s present intentions.  The tribunal has found those intentions to be in line with the visa criteria.  Many things may change if and once the visa applicant is onshore, which may impact upon compliance with visa conditions.  That is illustrated by the review applicant’s own unlawful stay in Australia.  In these circumstances, the tribunal considers that it is appropriate to require a security for the grant of the visa.   At hearing, the review applicant indicated she would meet a security set at $30000, and in the circumstances, the tribunal regards a security set at between $30000 to $40000 as appropriate. 

    No decision as to genuineness of relationship

24. In making this decision, the tribunal has not needed to consider if the claimed relationship between the applicant and her claimed partner is genuine.  The hearing was not conducted for that purpose and there is insufficient evidence in any event for the tribunal to form a view on that question.  Therefore, this decision should not be taken as endorsement or otherwise of the genuineness of the claimed relationship.  It is appropriate for that question to be considered and answered in relation to the offshore partner visa application that is on foot.

    DECISION

25. 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.

    Adrian Ho
    Member