1510925 (Migration)

[2015] AATA 3864

1510925 (Migration) [2015] AATA 3864 (11 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms LEANNE LIEN

VISA APPLICANT:  Ms THI TRUC LY LIEN

CASE NUMBER:  1510925

DIBP REFERENCE(S):  BCC2015/2121002

MEMBER:Don Lucas

DATE:11 December 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 11 December 2015 at 2:35pm

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 6 August 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 23 July 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 persuaded that the visa applicant genuinely intended to stay temporarily in Australia as a visitor, in particular having regard to the lack of evidence concerning the applicant’s financial circumstances leading to concern that the applicant may breach the strict employment prohibition in this category visa. In addition, the delegate was not persuaded in respect of the sibling relationship between the visa applicant and the review applicant and accordingly found that the sponsorship requirements in cl.600.232 was met.

5. The review applicant appeared before the Tribunal on 8 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ngoc Thao Tran, who is the daughter of the visa applicant who is presently in Australia on a student visa and who resides with her aunt, the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her Australian citizen sister in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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 never previously visited Australia and accordingly can be taken to meet this criterion.

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.600.612):

    ·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.

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

14. Prior to a hearing conducted in the matter, the review applicant’s representative provided the following submission attaching supporting documentation as referred to therein. The submissions stated:

    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 of which the visa is granted, having regard to whether the applicant has complied substantially with conditions to which the last substantvie 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.
    
    In the present case, the visa applicant seeks the visa for the purposes of visiting her sister (Australian citizen). This is a purpose for which a visa in the Visitor (Sponsored Family) stream may be granted. The delegate pointed out ‘that the sponsorship was not approved as the sponsor did not provide her birth certificate to establish the relationship between them. Therefore, 600.232 was not met’. At folios 33-39 of the Department’s file, you will find contained therein statutory declaration duly executed by the sponsor confirming her parents and sister’s details. Please find enclose herewith documents marked ‘Sponsor Documents’.
    
    The visa applicant also has a daughter, Ngoc Thao TRAN who is holding a student visa studying at Werribee Secondary College. Please find enclose herewith document marked ‘Letter from School’. We enclose herewith the visa applicant’s documents for your consideration;

    ·     Land Ownership;

    ·     Tax Payment;

    You will also find enclose herewith the following documents of the review applicant:

    ·     Nail Business Account;

    ·     Savings Account;

    ·     Council Rate; and

    ·     Home Loan Bank Account.

    The visa applicant has two daughters. Her oldest daughter, Ngoc Trang (‘Trang’) TRAN who is married and recently gave birth. Trang and her husband live with the visa applicant and also assisting her with the family business being conducted at the family home at 506 Mac Dinh Chi, Ward 9, Soc Trang, Viet Nam. Trang and her husband will be in charge of their business during the visa applicant’s stay in Australia. Her youngest daughter as mentioned above is currently under the care of the review applicant. The visa applicant learnt that her daughter’s academic performance in Austalia has been ‘going downhill’ for some months, further, her daughter will not be coming to Vietnam this year as she did every year before then.
    
    The review applicant commenced her nails and beauty salon some two months ago in Caufield South. She instructs that she continues to support the visa applicant’s application to Australia as she has real concern about the applicant’s daughter academic performance.

15. The evidence of the review applicant was provided in a manner that was substantially consistent with the written submissions made on her behalf. The review applicant clarified that she had recently established her own nail and beauty salon in the Melbourne suburb of Caulfield South, having taken over a pre-existing business and her trade was progressing well. She stated that the current financial position enabled her to provide any necessary security bond that may be requested in relation to her sister’s proposed visit. She emphasised that the principal reason for her sister’s visit was to provide maternal guidance to the daughter who was presently struggling with her studies and she as the aunt had so far been unable to have any positive influence.

16. The Tribunal indicated at the hearing that it had reviewed the documentation provided to the Department and was persuaded that in fact the documentation taken together appeared to confirm the sibling relationship of the visa applicant and the review applicant. The Tribunal accordingly indicated that the Tribunal would not need to further question the parties on the sponsorship criteria in cl.600.232.

17. The review applicant then gave evidence which to the Tribunal appeared inconsistent with the previous material, to the effect that her sister in Vietnam, the visa applicant, despite having separated/divorced from Mr Suong Tran, the father of the two children in 2005, she had since reconciled and the two were again living as a couple, although they had not (re)married. The Tribunal queried why it may have been that no reference was made to Mr Suong Tran again being the partner of the visa applicant in Vietnam, the visa application having been lodged on 23 July 2015. The Tribunal drew attention to question 20 on the visa application form which asks of family not travelling to Australia including “partner, any children or fiancée”. The Tribunal indicated the only person listed here was Trang Ngoc Tran, the visa applicant’s elder daughter born in 1990 who was apparently married with a recently born child, the entire family all residing together with the visa applicant according to recent submissions. The review applicant was unable to clarify why Mr Tran was not listed on the application form. The Tribunal accordingly contacted the visa applicant to seek clarification of matters including the current domestic arrangements.

18. However, the evidence of the visa applicant was in certain substantial respects entirely contradictory to the evidence provided by the review applicant and in the written submissions. Firstly, the visa applicant flatly denied that she had ever reconciled with the father of her two children. She confirmed, consistently with documentation provided to the Department, that she was recognised under the law in Vietnam as having “divorced” in December 2005 (the term “divorced” may possibly be mistranslation as the same document also refers to the couple having commenced living together in 1985 but never having registered any marriage). The Tribunal asked the visa applicant to clarify whether she had any ongoing contact with the father of her two children. The visa applicant’s evidence was clear to the effect that she does not have any contact with him and has not since 2005, although the father has certainly maintained different forms of contact with their two daughters.

19. Secondly, the visa applicant was also very clear in her evidence to the Tribunal that she only resided with her elder daughter TRAN Ngoc Trang born in January 1990, and that her daughter did not either have a husband and did not have a young child. When the Tribunal sought further clarification, the visa applicant stated that her daughter TRAN Ngoc Trang did have a boyfriend, but they do not now and have never cohabited and certainly have not as yet procreated. The visa applicant further stated that it would only be her elder daughter in Vietnam that will be left to run her small grocery business, and that she would only be able to assist with smaller matters and not be capable of running the business properly for any length of time.

20. The Tribunal observed that the review applicant appeared genuinely surprised at the contradictory evidence just provided to the Tribunal by her sister the visa applicant. She was unable to provide any explanation as to why her sister had just denied having reconciled with her husband, or why her sister the visa applicant had also denied that her elder daughter was married or had recently given birth to a young child.

21. At the request of the representative, the Tribunal took evidence from the daughter present in Australia and present at the Tribunal hearing, Tran Ngoc Thao. Although the witness confirmed that her parents had reconciled and that her sister was married with a child, she was also unable to provide any explanation as to why her mother had just given the Tribunal directly contrary evidence.

22. The Tribunal allowed a period of time for the provision of any post hearing submissions and evidence that may clarify the direct contradictions in the evidence provided by the parties.

23. Subsequently, the Tribunal received a translated statement by the visa applicant, together with family registration documents appearing to show the visa applicant registered at an address in Soc Trang City, which also listed her two daughters and a male child born on 15 September 2015 listed as the visa applicant’s grandson. Two photographs were also provided, with hand written inscriptions identifying the visa applicant, her daughter and her “husband” which was said to have been taken at the wedding of the latter two.

24. The visa applicant’s statement of explanation was in the following terms:

    Explaining about inconsistent information during tribunal hearing on 08/12/2015

    Firstly, allow me to apologise to you with respect to information which lack accuracies in answers provided during the hearing on 08/12/2015.

    When I was asked about my former husband, I told the tribunal that we have parted and did not know anything about him was because when the issue of ascertain about my relationship with my husband, I must provide to the Tribunal evidence of what I said, when in fact I don't have any evidence to prove this point. We are not married and on the face of the law, my husband does not live with me at the same address.

    Because of the similar difficulties in proving the existence of the relationship of my daughter and her partner, I must answer they are not in a relationship. We had a wedding celebration for them both last year, however on papers, they are not legally married and his name is not recorded on the Family Household Registration

    When I was asked about my grand child being born on 15/09/2015, the formality of adding the grandchild to the Family Household Registration was delayed. His name was added to the Family Household Registration on 28 October 2015, however we did not receive this from the local authority until 08/12/2015 (after the hearing). During the same day, I immediately went to obtain the translation of the Family Household Registration to supplement to the Tribunal for your consideration.

    I understand that if I wanted to ascertain the existence of my family members when I was unable to provide evidence to prove what I stated, there is a very high chance that a decision maker will believe that I fabricate a situation to colour my incentive to return to Vietnam. From an other perspective, what I stated to the Tribunal lack the practical facts about what I do, but up to the very point of answering the Tribunal, these answers were correct in accordance with the law and evidence I have in hand.

    I hope you understand my situation and assess on the basis that I do not have any motive to lie to the Tribunal as even if I failed to declare my relatives would not in anyway 'assist' in my application to visit Australia. It was only, I had to leave out some 'useful information' in my application as I was not able to prove on papers accordingly to law.

    After this incident, I have learnt a big lesson about the administrative law of Australia and if I had to reapply once more, I will declare all information, even those I may not be able to obtain papers for,

    Once again I sincerely apologise for the information lack of truthfulness provided to the hearing recently.

    I deeply regret for what happened.

25. The Tribunal does not accept the visa applicant explanation, which appears fundamentally to seek to justify the deliberate provision of false evidence to the Tribunal at the hearing simply because there was a lack of documentary evidence of the same matters. The Tribunal considers that the visa applicant’s apparent willingness to consciously provide false information to the Tribunal to fundamentally undermine the credit of her claims more generally in relation to being a genuine applicant for temporary stay in Australia as a visitor. In this regard, the Tribunal does not regard it as of any significance that the deliberately false statements made by the visa applicant to the Tribunal at the hearing were necessarily statements which would not even benefit her case were the Tribunal to have accepted them. It is not necessary for the Tribunal to determine what subjective value the visa applicant may have placed upon statements she consciously made to the Tribunal which she knew was false.  The simple fact that the visa applicant has provided deliberately false evidence is sufficient to cause the Tribunal substantial doubt as to the bona fides of the visa applicant more generally, in relation to the question of whether she will comply with visa conditions. This includes most critically the condition requiring her to depart Australia before the expiry of any visitor visa granted to her.

26. The Tribunal accepts the evidence that the younger daughter in Australia is having difficulties with study and her aunt of the review applicant is in turn having difficulties providing necessary guidance. In this regard, the Tribunal gives weight to the fact that the visa applicant younger unmarried daughter is present in Australia on a student visa and this may act as a disincentive for the visa applicant to return to Vietnam prior to the end of any proposed visit period. The fact that the visa applicant would be barred from making any application, for example under the student Guardian category, by obstacles including the no further stay clause in condition 8503, does not lay the Tribunal’s concerns in relation to the question of the visa applicant’s compliance risk.

27. In addition to its concern about the visa applicant abiding by the condition that she depart Australia within the time specified on any visa, the Tribunal further considers that the visa applicant’s deliberately false evidence provided at the hearing to the Tribunal constitutes a relevant matter open for the Tribunal to consider under cl.600.211(c) in relation to the broader question of whether the visa applicant genuinely intends to stay temporarily in Australia as a visitor.

    CONCLUSIONS

28. 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

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

    Don Lucas
    Member