1509625 (Migration)

[2015] AATA 3720

1509625 (Migration) [2015] AATA 3720 (25 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Leif Andersen

VISA APPLICANT:  Mrs Panjaporn Andersen

CASE NUMBER:  1509625

DIBP REFERENCE(S):  122468

MEMBER:Miriam Holmes

DATE:25 November 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 25 November 2015 at 5:15pm

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  

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 delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant, Mr Andersen, appeared before the Tribunal on 24 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Andersen, the visa applicant and Ms M Anderson, the review applicant’s daughter.  

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 her husband, Mr Andersen. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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 31 October 2014 Mrs Andersen travelled to Australia on a visitor (subclass 600) visa. The visa was granted until 31 January 2015. Mrs Andersen remained in Australia after 31 January 2015 and departed Australia on 16 March 2015.

11. In a letter to the Tribunal the review applicant noted that they apologised for the overstay and stated “There is no excuse other than to stay that my wife did not understand that the visa was granted for 3 months, she had applied for up to 6 months, and I did not check the visa grant notice.” The letter goes on to note that Mr Andersen hopes that the Department understands the mistake that was made, and not on purpose, but  on the assumption that 6 months was granted.

12. At the hearing, Mr Andersen stated that the over stay was an oversight. He stated that Mrs Andersen applied for the visitor visa in Bangkok and applied to visit Australia for 6 months. He said that Mrs Andersen’s English is not very good and he did not check the length of the visa. Mr Andersen stated that Mrs Andersen told him that she had been granted the visa and he did not check the period of the visa. He said that Mrs Andersen applied for a six month visa and Mrs Andersen assumed she had been granted a six month visa. He said that at previous times Mrs Andersen had been granted three month visas. During those trips Mrs Andersen had been working for the local government in Thailand. However since she left that job she thought it was better to travel for a longer period.

13. At the hearing Mr Andersen said they became aware that Mrs Andersen had overstayed her visitor visa when they were leaving Australia in March 2015 because Immigration officers said to them at the airport that Mrs Andersen had over stayed. The officers stated to them that it happens and not to worry about it. 

14. At the hearing, Mrs Andersen stated that it is true that she overstayed. She stated that when she travelled to Australia she forgot to take her visa documents with her to Australia. She said that she and Mr Andersen argued in Australia whether the visa was for 3 months or 6 months. She stated that when the visa was issued she was in Bangkok and she had a look at the visa but she did not understand. She applied for 6 months and the staff asked why she wanted 6 months and then the visa was handed back to her. She stated that at the airport when leaving Australia the officers told her that she had overstayed. Once she arrived home in Thailand she looked at the paperwork in her house and she saw it was only a 3 month visa. Mr Andersen stated that they did have words at the airport, although he would not describe it as an argument.  Mrs Andersen stated that she returned to Thailand in March 2015 because she had to harvest and sell her rice crop and Mr Andersen stated they returned to celebrate the Thai New Year.

15. The Tribunal finds that there was substantial non-compliance with the condition that Mrs Andersen departs Australia by 31 January 2015. Mrs Andersen departed Australia on 16 March 2015.

16. 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):

    ·8101 – must not work in Australia

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

17. The Tribunal has discussed these matters below.

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

19. The Tribunal made the following findings based on the oral evidence and documentary evidence available.

    ·Mrs Andersen was born in 1962 in Thailand and is aged 53 years and is a citizen of Thailand. As at the date of the hearing Mrs Andersen was residing in a village in Thailand.

    ·Mrs Andersen is married to Mr Andersen, aged 66 years.

    ·Mr Andersen and Mrs Andersen met over the internet when Mr Andersen was going through a divorce, in about 2010 or 2011. On Mr Andersen’s return trip to Australia Mr Andersen travelled to Thailand and met Mrs Andersen. Three years later they became engaged – in 2013 and they married in Thailand on 18 August 2014.

    ·Mrs Andersen has travelled to Australia on a number of occasions to visit Mr Andersen. She has travelled to Australia using her married name and her former name, Ms Panjaporn Seehasaen. She travelled to Australia as follows:

    o12 February 2013 to 16 April 2013 on a visitor (subclass 676) visa;

    o9 November 2013 to 28 January 2014 on a visitor (subclass 600) visa;

    o15 March 2014 to 16 April 2014 on a visitor (subclass 600) visa;

    o31 October 2014 until 31 January 2015 on a visitor (subclass 600) visa, although remained in Australia without a visa until 16 March 2015, when she departed.

    ·Mrs Andersen has also travelled with Mr Andersen to other countries including Denmark for one month to visit Mr Andersen’s family (in 2012), Vietnam for one week (in 2013), and Cambodia for ten days (in 2015).

    ·Mrs Andersen was previously married but her husband passed away. Mrs Andersen has three adult children – a daughter who is a teacher, a son who is employed and her youngest daughter aged 19 years is a student and studying an Advanced Diploma. Mrs Andersen’s daughters and son live in Rayong, Thailand. The three adult children have visited Australia.

    ·Mrs Andersen’s brother and sister both reside in the same village in Thailand as Mrs Andersen.

    ·Mrs Andersen operates a rice and cassava farm in the countryside of Thailand. She also grows sugar cane sometimes.  Her income varies and it depends on the seasons and crop prices. Mrs Andersen receives 60,000 and 70,000 Baht per year from cassava and 100,000 Baht per year from rice. When Mrs Andersen travels Mrs Andersen’s siblings look after the farm for her. She states that due to the type of farming, only at one time of the year is major work required – harvesting and grinding rice. At other times, Mrs Andersen’s family can look after the farm.

    ·Mr Andersen stated that when they first met, Mrs Andersen worked for local government in Thailand. However since they have married and Mrs Andersen has been travelling more, Mrs Andersen ceased working for the local government.

    ·Mr Andersen sends money to Mrs Andersen when she needs money. Mrs Andersen stated that Mr Andersen is not wealthy so he does not send that much money to her. Mr Andersen stated that Mrs Andersen lives in a village where there is limited income.

    ·Mrs Andersen owns a house in Thailand, and she owns farming land in Thailand. Her parents were farmers and when they passed they left the farming land to Mrs Andersen and her two siblings. Mrs Andersen also has another parcel of land where she built a petrol station. She no longer operates the petrol station business – it is vacant. Mrs Andersen took out a loan to build the petrol station but it is almost paid off.  Mrs Andersen has minimal bank savings. Mrs Andersen also has a car and a motor bike.

    ·Mr Andersen stated that Mrs Andersen is able to survive in the village in Thailand. He said it is a poor village with little income and the young people do not have work, however the living expenses are cheap.

    ·Mr Andersen regularly travels to Thailand to stay with Mrs Andersen. He states that it is cheaper for him to live in Thailand than in Australia and likes to return regularly to Thailand. The movement records indicate that Mr Andersen has frequently travelled out of Australia, and he states that he travelled to Thailand, for example three trips in 2014. Mr Andersen mostly recently travelled to Thailand and stayed with Mrs Andersen between March 2015 and October 2015. 

    ·Mr Andersen is an Australian permanent resident who migrated to Australia in 1971. Mr Andersen has 2 adult daughters and 4 grandchildren in Australia. Mr Andersen resides in an onsite caravan on the Mornington Peninsula with one of his adult daughters. Mr Andersen receives an age pension and he receives a small amount of income from assisting with maintenance at an ice cream shop on the Mornington Peninsula that he formerly operated. One of Mr Andersen’s adult daughters has been operating the shop in recent years. Mr Andersen is also entitled to a small pension form the Netherlands however he has not received any pension from overseas as at the date of hearing. Mr Andersen is currently in the process of selling his unregistered car and has little savings but relies on the age pension to meet his expenses and also relies on a credit card.

    ·During Mrs Andersen’s previous trips to Australia she has stayed at various locations. During the first trip they stayed with Mr Andersen’s friends in his friends’ house on the Mornington Peninsula; during the second trip they stayed in a rented house on the Mornington Peninsula and during the third visit they stayed in Mr Andersen’s caravan, and with Mr Andersen’s sister in Bright and Mr Andersen’s daughter in Mansfield. Mrs Andersen relies on Mr Andersen financially when she travels to Australia and he meets the associated costs with her trip to Australia. Mrs Andersen will rely on Mr Andersen to provide accommodation, meals and meet her living costs if she travels to Australia on another visitor visa.

    ·Mr Andersen previously sponsored a person from Thailand. That person initially travelled to Australia as a visitor and then he later sponsored her as his partner to Australia and she did obtain permanent residence.

    ·If condition 8503 was included on the visitor visa then Mr Andersen and Mrs Andersen indicated they would have no problem with that condition being imposed.  

    ·Mrs Andersen and Mr Andersen communicate in English, although Mrs Andersen’s English is basic.

    ·Ms M Andersen gave evidence that her and the rest of the family all support Mrs Andersen visiting Australia and that Mrs Andersen is considered part of the family.

    ·Ms M Andersen and Mr Andersen both gave evidence that Mr Andersen wishes to spend time with his wife in Australia. Mr Andersen stated that he finds it very hard without Mrs Andersen being with him.

    ·Mrs Andersen and Mr Andersen have briefly discussed whether Mrs Andersen would apply for a permanent partner visa, but Mrs Andersen did not agree to this suggestion by Mr Andersen. Mrs Andersen states that she wants to live in Thailand. Mrs Andersen wants to stay in Thailand for her children. Mrs Andersen has not lodged a partner visa application to travel or remain in Australia.

20. On 24 June 2015 Mrs Andersen lodged the visitor visa application. In the application Mrs Andersen indicated that she wished to travel to Australia for a period of six months from 12 September 2015 until 12 March 2016. The visa applicant stated that she wished to travel to Australia to spend time with her husband. Mr and Mrs Andersen both stated that if Mrs Andersen visited Australia they would stay together and spend time together. They also stated that they would also visit and stay with Mr Andersen’s sister in Bright and his adult daughter in Mansfield.

21. The Tribunal also had regard to the information that was provided in the visa application form regarding the over stay by Mrs Andersen on her last visit to Australia. At page 38 of the visitor visa application lodged on 24 June 2015 Mrs Andersen replied no to the question – “Have you ever overstayed a visa in any country (including Australia)?” Similarly at question 42 in response to the question “Have you ever been in Australia and not complied with visa conditions or departed Australia outside your authorised period of stay?” The applicant ticked “no”.

22. At the hearing, initially Mr Andersen stated that he did not know who completed the visa application form. When the Tribunal asked about the responses to question 38 and question 42 Mr Andersen stated that he thinks he helped Mrs Andersen with that, but he does not know why they filled in the form like that. He said Mrs Andersen knew she had overstayed. Mr Andersen said they became aware that Mrs Andersen had overstayed her visitor visa when they were leaving Australia in March 2015 because Immigration officers said to them at the airport that Mrs Andersen had over stayed. The officers stated to them that it happens and not to worry about it.  

23. The Tribunal noted that the responses on the visa application form raised the issue of the credibility of Mr Andersen’s and Mrs Andersen’s oral evidence. Mr Andersen stated that it was an oversight on his behalf. He said they completed the form at the visa centre in Bangkok and he would have been asked, but he cannot understand why the answer is “no”. It was not done on purpose and he has no answer, as the answers are listed as no and he cannot explain why they didn’t say that she overstayed. Mr Andersen could not explain why they answered “no’ to question 38 and 42.

24. At the hearing Mrs Andersen stated that she filled out the visa application form with the assistance of Mr Andersen who went with her to make the application. She said they both filled out the form – he had an English version and she had a Thai version of the form. She said they helped each other when completing the form. When the Tribunal asked Mrs Andersen why she ticked no at question 38 she stated that she did not understand the question. Again, in relation to her response of “no” at question 42 she stated that she did not understand the question. The Tribunal expressed its concerns as to whether the Tribunal could rely on her evidence about her intentions when she had given incorrect answers in her visa application form about her previous overstay. The applicant stated that she definitely only wanted to travel to Australia temporarily. She said the first time she came she had a three month visa, then she got a six month visa and she did not understand the question on the form and her English is not very good. The Tribunal notes that Mrs Andersen was granted a six month visa when she travelled to Australia on 9 November 2013, although all other visitor visas have only been granted for a three month period.

25. Mr Andersen stated that Mrs Andersen would only visit Australia temporarily and would return to Thailand because her siblings reside in Thailand in the same village where she lives, and her 3 children all reside in Thailand as does her grandchild. In addition he stated that Mrs Andersen has her farm in Thailand and Mr Andersen likes to visit Thailand and stay in Thailand. He stated that Mrs Andersen has no intention of seeking permanent residency in Australia and has no intention of staying in Australia permanently.

26. The Tribunal discussed with Mrs Andersen why she would return to Thailand. Mrs Andersen stated that wants to live in Thailand because she likes living there and Australia has different food and weather. Mr Andersen reiterated that Mrs Andersen would return to be with her family.

27. The Tribunal can understand why the delegate refused the visa application on the information available. However, the Tribunal has had the benefit of speaking with Mr Andersen and Mrs Andersen and, on balance, the Tribunal is satisfied that Mrs Andersen will comply with the visa conditions, including a condition to not stay in Australia after the end of the permitted stay and a condition 8503, and the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal took into consideration that Mrs Andersen has travelled to Australia on multiple occasions on visitor visas to visit Mr Andersen and she has only overstayed her visitor visa for six weeks on one occasion. The visa applicant left Australia voluntarily and returned to Thailand on that occasion.  The visa applicant has strong family ties to Thailand – her siblings, three adult children and 1 grandson. The Tribunal considered that these family ties were a strong incentive for Mrs Andersen to return to Thailand and is satisfied that these family ties have been an incentive in the past for the visa applicant to return to Thailand after visiting Australia. The visa applicant also has land, home and a farm in Thailand which are an incentive for Mrs Andersen to return. The Tribunal also took into consideration that Mrs Andersen’s husband, Mr Andersen, regularly travels to Thailand and has spent 7 months already this year with Mrs Andersen in Thailand and that he wishes to travel to Thailand to stay for several months a year. In this regard the Tribunal notes that Mr Andersen is reliant on a Centrelink age pension, he has minimal assets in Australia and a minimal income, and from a financial perspective Mr Andersen has a better lifestyle and cheaper living costs in Thailand and therefore has a financial incentive to reside with Mrs Andersen in Thailand where possible. It is evident that Mr Andersen wishes to be with Mrs Andersen and that he wishes to spend time with her in Thailand. Mrs Andersen is aware that Mr Andersen does not have many financial resources and she wishes to spend time with Mr Andersen in Thailand.

1. The Tribunal did take into consideration the incorrect answers on the visa application form. Whilst these inaccurate responses do raise doubts as to the reliability of Mrs Andersen’s and Mr Andersen’s evidence regarding Mrs Andersen’s intentions in travelling to Australia, the Tribunal is satisfied on the evidence available, taking into account a range of matters discussed above, that Mrs Andersen genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  

2. The Tribunal notes that it has not considered whether the visa applicant meets the requirements in cl.600.213 and understands this is a matter that may be considered by the delegate further.   

3. 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

4. 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.

   Miriam Holmes
   Senior Member