1509102 (Migration)

[2016] AATA 3349

1509102 (Migration) [2016] AATA 3349 (18 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Thanachote Intathep

VISA APPLICANT:  Mr Sorawit Intathep

CASE NUMBER:  1509102

DIBP REFERENCE(S):  122493

MEMBER:Josephine Kelly

DATE:18 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2016 at 10:38am

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 2 July 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 24 June 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 Tourist 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 the visa applicant had not provided substantive evidence to demonstrate strong employment and therefore was not satisfied that the visa applicant had sufficient incentive to leave Australia at the end of his authorised stay or to abide by the conditions of his visa.  

5. The review applicant appeared before the Tribunal on 27 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s partner and from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

   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. I have taken into account all the documentary and oral evidence provided in support of the application in making the following findings.

9. In the present case, the visa applicant seeks the visa for the purposes of tourism and visiting his brother. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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 visa applicant has no relevant travel history to Australia.

12. 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.600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

13. The visa applicant was born in 1981. He married in about 2002 and has an eleven year old daughter. The marriage was registered on 25 May 2004.  His parents live near him in Cheng Rai Province, Thailand.

14. He studied construction in Cheng Rai province but did not work in that field. The review applicant said that the visa applicant did not finish his degree.  The visa applicant said that a friend suggested he work with him in making car parts.  So for about two years, from 2005 to 2007, the visa applicant worked for a company producing car parts in Chon Buri Province, which is about 1,000 kilometres from his home village.  The visa applicant has held a Thai passport issued on 5 February 2007.  He travelled to Japan on 5 September 2007 where he worked and trained for the same company on a machine making car parts until 5 September 2010. His traineeship finished.  While he was in Japan, he sent money back to Thailand to his family to use and to save.  He currently holds a Thai passport that was issued on 24 October 2014.

15. The visa applicant is currently enrolled in his third year of a Bachelor of Business Administration (General Management) degree.  The documents provided show that he began that course on 8 June 2013.

16. The visa applicant told the Tribunal that his main income is from his farm.  He also receives income in relation to his job in the village. He is the assistant to the village chief, for which he receives 5,000 baht per month.  He works for about 10 days a month looking after the safety and well-being of the community, liaising with government agencies.  The rest of the time he works on the farm.   

17. The review applicant explained that the family has owned the farm comprising 10 acres for more than 20 years. The review applicant purchased an additional piece of land adjoining the farm, less than an acre.   Rice, rubber, pineapples and fruit palms are grown. Their father used to work on the farm but has not worked for the past five years according to the review applicant.  I accept that the visa applicant has been working on the farm since he returned from Japan.  Whatever training he undertook there has not been used since he returned to Thailand.

18. The review applicant said that he has transferred funds to his brother’s bank account to support his farm work, for example to buy equipment such as agricultural equipment, fertilizer, a small tractor with a blade, and a water pump.  He said that he was not supporting his family in Thailand. Later at the hearing, he said that he sent money to his parents but not his brother. The review applicant said that the visa applicant’s savings were his own and not from the review applicant. When I said that the irregular payments into the visa applicant’s bank account did not seem consistent with his farming activity and village work, the review applicant said that the irregular payments and amounts in the visa applicant’s bank account were from his farming activity which is paid irregularly.

19. Deposits into the visa applicant’s bank account totalled approximately 1,758,500 TB or approximately 69,000 AUD from 29 May 2014 to 5 January 2016, about 18 months.  That is an average monthly income of 97,000 TB a month.

20. The most recent statistics about household income from the National Statistics Office of Thailand (the NSO) were for 2011 when the average monthly income per capita was 6,737 TB.[1]  Households of the highest income group had an average monthly income per capital of 18,185 TB.

    [1] >

    The report said:  

    Concerning by type of occupation, it was found that households of employed professional, technical and executive workers earned the highest income about 39,600 baht per month, followed by households of operators in non-farm
    business and households of farm operators mainly renting land/occupation free (25,274 and 22,923 baht, respectively). The lowest earning approximately 10,910 baht per month was of households of farm workers.

21. I do not accept that the bank deposits into the visa applicant’s bank account reflect income from his farm and local government work. I do not accept that he was earning 97,000 TB a month.  In making that finding, I have taken into account that the official statistics are for 2011 and that household incomes may have increased since then.  However, I do not accept that they would have increased 200 or 300 per cent in three or four years. I also do not accept that the visa applicant is in the highest income earning profession listed in the NSO report.

22. The visa applicant applied unsuccessfully for a student visa in December 2014, as disclosed in his current application.  The review applicant said that it was for a one year English course.  He knew the visa applicant was making that application.  It was made about seven month before it was refused December 2014.  That is, the application was made in about May 2014. 

23. That the visa applicant was prepared to come to study in Australia for a year when he applied for the student visa in about May 2014 shows that his farm duties and his duties in the village could be relinquished for a year.  He could leave his studies for a year. He was clearly also prepared to leave his wife and child in Thailand while he came.

24. I am not satisfied that the visa applicant’s history of training and working in Japan for three years and being prepared to come to Australia for a year to study English shows that he has strong links to Thailand such that he would comply with the conditions of his visa, in particular not to overstay and not to study in Australia for more than three months.  In making that finding, I have taken into account his and the review applicant’s claims that he would return to Thailand because of his obligations there but do not accept them in the face of his past history.

25. I have taken into account the review applicant’s migration history. He has complied with visa conditions and migration law. That history does not require me to give greater scrutiny to the visa application than usual. 

26. I have also taken into account the detailed evidence both the review applicant and his partner gave about their relationship, related family issues, and the visa applicant’s wish to see how they live in Australia and to give him the chance to go skiing, as the review applicant did in 2014.

27. However, I am concerned with the intention of the visa applicant, not the intention of the review applicant or his partner.

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

29. I have taken into account the review applicant’s sponsorship and the evidence of his financial means.  While that may be a factor that may influence the visa applicant, I find that the overwhelming evidence in this case does not satisfy me that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

30. 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

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

    Josephine Kelly
    Senior Member