1509843 (Migration)

[2015] AATA 3648

1509843 (Migration) [2015] AATA 3648 (16 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Lang Thi Kim Vy

VISA APPLICANT:  Ms Thi Kim Nhung Vy

CASE NUMBER:  1509843

DIBP REFERENCE(S):  BCC2015/1517837

MEMBER:Antonio Dronjic

DATE:16 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 16 November 2015 at 4:13pm

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 9 June 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 26 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 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. Her mother, who applied for the visitors’ visa at the same time as the visa applicant, was granted the visa in June 2015. Because of her English, her mother would like to travel to Australia with the visa applicant.

5. The review applicant appeared before the Tribunal on 16 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. 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 decision under the 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. In the present case, the visa applicant seeks the visa for the purposes of visiting her two sisters and number of other relatives living in Australia including four uncles and grandmother. 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)). There is no evidence that the visa applicant travelled to Australia previously or ever applied for an Australian visa. However, there is evidence before me that her parents travelled to Australia in June 2013 and departed Australia within the visa validity period. In addition, her mother was granted a visitors’ visa in June 2015.

10. 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.

11. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal has discussed the matters relevant to cl.600.211(b) and (c) below. The Tribunal made the following findings on the oral evidence and the documentary evidence available.

12. The visa applicant is 19 years of age, singe female national of Vietnam. She is studying English language course as preparation for an exam she must undertake in June 2016 as prerequisite for admission to University. She intends to study Teachers Training College with major in English language. She has attempted to pass the admission test this year but was not successful. She lives in Ho Chi Minh City with her friend who owns the apartment. She does not pay rent and is financially supported by her parents. She does not work or own any property under her name. She intends to undertake her studies in Saigon.

13. The review applicant is 26 years of age. In 2011 she was granted a spouse visa. Subsequently she was granted permanent residency and is now an Australian citizen. She divorced her husband in 2013. She works two days per week as a Settlement Service Assistant for Western Bulldogs. She is also studding a Community Development course. She does not own the property in Australia and lives in a rented accommodation. She earns approximately $1,200 per month from her part time employment.

14. Her parents, sister and two brothers live In Vietnam. She also has one sister who lives in Australia and who married an Australian citizen in 2013. Her parents are farmers and two brothers are at school. She gave evidence that her mother was granted a visitors’ visa in June 2015 but did not travel to Australia because she is waiting for the outcome of the current review application. Her mother does not speak English and would like to travel to Australia together with her sister (the visa applicant). She would like her sister to stay in Australia for 3-4 weeks. She stated that the visa applicant travelled to Thailand as a part of an organised tour in September 2015. She stated that she has very close relationship with her sister and maintains daily contact with her visa SMS messages and internet.

15. She indicated that, together with her sister who lives in Australia, she is willing to pay the security bond if required to do so by the Department. She further stated that her sister will not work in Australia if granted a visa and will return to Vietnam within the visa validity period. She acknowledged that failure to do so would mean that any future visitors’ visa applications made by her parents or brothers from Vietnam will be adversely affected if her sister does not comply with the visa conditions.

16. Based on the evidence before it, 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.

17. The Tribunal finds that the visa applicant’s family ties in Vietnam are limited to non-dependant relatives. She does not live with her parents and there is little in the evidence that has been presented to the Tribunal to suggest that the visa applicant’s family in Vietnam require her presence there due to any identified need, and the consequential support she provides to them. She is single and not involved in a relationship.

18. Based on the evidence before me, I am not satisfied that the visa applicant has employment ties in Vietnam that would serve as incentive for her return to Vietnam after completing her visit to Australia. I give little weight to the evidence of the visa applicant’s study in Vietnam as the course she is currently undertaking is only a preparation for an exam she must undertake in June 2016.

19. The visa applicant presented no evidence of property ownership or savings held in Vietnam. I am not satisfied on the evidence before me that the visa applicant would not breach her visa conditions or seek to remain in Australia if granted a visitor’s visa.

20. 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

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

    Antonio Dronjic
    Member