1512221 (Migration)

[2016] AATA 3056

1512221 (Migration) [2016] AATA 3056 (8 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Thi Ngoc Hue Tran

VISA APPLICANT:  Mrs Thi Ngoc Hang Tran

CASE NUMBER:  1512221

DIBP REFERENCE:  Paper records file AUV - VN 02-043635

MEMBER:Deborah Morgan

DATE:8 January 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 08 January 2016 at 11:40am

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 (the delegate) on 1 September 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 25 August 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 evidence did not demonstrate an intention to make a  genuine visit to Australia. 

5. The review applicant appeared before the Tribunal on 18 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Le, a family friend in person; by telephone from Mr George Papas, the review applicant’s former husband, and 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 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 the review applicant who is her sister. Birth certificates before the Tribunal support the claim that the visa applicant and the review applicant are sisters. 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)). The Tribunal is satisfied that the visa applicant has not previously entered Australia. 

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.600.611(3)):

    ·8101 – must not work in Australia

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

11. The Tribunal received evidence from both the review applicant and the visa applicant that the visa applicant does not intend to work or study in Australia because she intends only to visit this country.

    Other relevant matters

12. The Tribunal has also considered all other relevant matters as it is required to do pursuant to clause 600.211(c).

    The Department’s file

13. The Department’s papers include registration of the visa applicant’s café business on 19 May 2015 (folios 9 &10).  The capital of the business is stated to be 10 million Vietnamese dong (VND).

14. The visa applicant’s marriage certificate was submitted to the Department which indicates her marriage was registered in Vietnam on 27 May 2002 (folios 21 & 22).

15. Account balance certification from DongA Bank dated 20 August 2015 has been received by the Tribunal. The bank certification states that the visa applicant deposited more than 110,000 million VND in an account with DongA bank on 3 July 2015 and more than 90 million VND in a second account in the same bank on 17 August 2015 (refer Tribunal file, folio 13). The Tribunal has calculated those two deposits equate approximately AUD12,000.  

    Oral evidence received from the review applicant

16. The Tribunal received oral evidence from the review applicant on the following matters:

    (a)Personal circumstances

    ·The visa applicant is married with a son aged 15.

    ·Her husband works delivering milk from a factory to supermarkets.

    ·The visa applicant’s son’s school fees are 400 million VND annually.

    ·The review applicant told the Tribunal that the visa applicant enjoys a comfortable life in a safe area.

    (b)Economic circumstances

    ·According to the review applicant, the visa applicant owns three properties and on one of them she conducts a coffee shop. Her parents live in one of her houses. 

    ·The visa applicant has run the coffee shop for 1.5 years. She recently registered the business to provide proof of its existence.  

    ·The large sums of money in the visa applicant’s bank account belong to her. She had the funds at home and deposited them in the bank because she realised it was necessary to do so for her Visitor visa application.

    ·The money in her bank account includes her savings from her former employment at the factory where her husband now works.

    ·The coffee shop is going well. The visa applicant makes 400,000 VND profit daily – on the Tribunal’s calculations that sum in VND approximates AUD24.00.

    ·The visa applicant’s parents would act as caretakers of her coffee shop business if she is granted a Visitor visa.

    (c ) Incentives to depart Australia before the expiry of a Visitor visa

    ·The visa applicant’s husband, her son and her coffee shop business are the incentives that would cause the visa applicant to return to her home country.

17. The review applicant told the Tribunal that she divorced her husband, George Papas, in June 2015. She works as a farmhand on 6 to 7 days weekly and earns approximately $750 for that. She purchased a house in September 2015 for $155,000. She had saved $35,000 and borrowed $120,000 to effect the purchase.

    Oral evidence received from Mr Papas

18. Although he and the review applicant are legally divorced, he and she live under the same roof to some degree. He said she is his unofficial carer and she works in a market garden most days. 

19. He described the visa applicant as middle class Vietnamese.

20. He has been to Vietnam on ten occasions. In his opinion the visa applicant and her husband are happily married. 

21. The visa applicant owns two houses and on one of the properties she operates a café.

22. The visa applicant purchased the property from where she runs the café in early 2015.

23. If the visa is granted, the visa applicant’s husband and father-in-law will run the café.

24. He said the visa applicant used to work for the shoe company, Nike and became a manager.

25. He strongly doubts that the visa applicant would seek to work or study in Australia.

26. In his view the visa applicant does not have any fears of persecution.

27. The money in the visa applicant’s bank account is funds he and the review applicant paid her when they purchased a house from her in Vietnam and the visa applicant and her husband’s accumulated savings. They paid her AUD25,000 in late 2014.

28. The visa applicant’s incentives to return to Vietnam are her husband, her son and her café.

    Oral evidence received from the visa applicant

29. She has never travelled out of Vietnam.

30. She lives with her husband and son.

31. She no concerns for her personal safety. She has a comfortable life.

32. Her parents and three of her siblings live nearby and she sees them weekly.

33. Her relatives in Australia are the review applicant, and a paternal aunt, Mrs Thi Ngoc Tien Tran. 

34. She has owned the coffee shop for 4 to 5 years. The Tribunal put it to her that her sister gave evidence she had owned the business for a shorter time. She said she does not talk to her sister a lot. 

35. The café’s daily profit is VND600,000. The Tribunal informed her that the review applicant had stated a different amount.

36. If she is granted a visa to visit Australia, her sister or another family member will act as caretaker of her café.

37. She owns three houses and rents two of them. She later admitted that her parents live in one of the houses rent free. The Tribunal put it to her that it had received evidence that she had she sold one of her houses to the review applicant and her husband. She said that was correct but she has not yet done the “paperwork” in relation to that transaction.

38. The deposits in her bank account are a combination of her husband’s savings and interest received from persons she has lent money. The Tribunal asked the visa applicant why she failed to state that some of the funds in her bank are the proceeds she received from selling a house to the review applicant. She said that was because it was difficult to explain what had occurred – she said she lent money to a friend of the review applicant’s and was receiving interest from that person. Later in the hearing the visa applicant said that the greater proportion of funds in the bank is her savings and interest received from others.

39. She worked for shoe manufacturer for 3 years and became a team leader. She ceased that employment in 2010.

40. Her husband earns VND 13 million per month. Her husband’s translated payslip was provided to the Tribunal after the hearing and states that his net salary as a truck driver in October 2015 was VND12,676,947 – Tribunal file, folio 49.

41. The applicant told the Tribunal that the incentives for her to return to Vietnam are mostly her family and, to a lesser degree, her business.

    Conclusions

42. The Tribunal is satisfied on the evidence that the visa applicant is a citizen of Vietnam and is married to Mr Huynh Quoc Khanh.

43. The Tribunal is further satisfied on the evidence that the visa applicant has a son who was born on 20 July 2000 (refer Family Book, Department papers, folio 24) and is now 15 years.  

44. The Tribunal accepts that the visa applicant resides in Vietnam with her husband and son.

45. The Tribunal acknowledges that the presence of the visa applicant’s husband and teenage son may act as an incentive for her to return to Vietnam if she came to Australia as a visitor.

46. However, for the reasons that follow, despite the possibility of the visa applicant’s immediate family acting as an incentive for the visa applicant to return to her home country, the Tribunal fails to be satisfied that the visa applicant intends a genuine visit.

47. The numerous inconsistencies in the oral evidence have led the Tribunal to have significant credibility concerns. Those inconsistencies, as outlined above, were in relation to the number of houses the visa applicant owns, whether or not she receives rent for them, the length of time the visa applicant has conducted the café, the amount of daily profit the visa applicant makes from the café business, the source of monies deposited in her bank account (just prior to her application for a Visitor visa) and who would act as caretaker the café business if she is granted a Visitor visa.  

48. Where the inconsistencies occurred, the Tribunal prefers the oral evidence received from Mr George Papas, the review applicant’s former husband, and considers that  evidence is credible as against than that taken from the visa applicant and the review applicant who, the Tribunal considers, have embellished the visa applicant’s circumstances in order to enhance the visa applicant’s chances at review.   

49. The failure of the review applicant and the visa applicant to tell the Tribunal that the visa applicant has sold one of her three houses to the review applicant and Mr Papas reflects very poorly on their credibility. It was only when Mr Papas volunteered that information that the Tribunal became aware of the transaction.

50. The Tribunal prefers Mr Papas’ oral evidence in relation to the source of funds deposited in the visa applicant’s DongA bank account shortly before the visa application was lodged and considers it likely that those funds are part of the $25,000 that the review applicant and Mr Papas paid her to purchase one of her house properties in late 2014. According to the visa applicant the “paperwork” for the house purchase transaction between the visa applicant and the review applicant has not ever been completed. That raises the issue whether the house sale process was a sham and was concocted between the visa applicant and the review applicant to imply that the visa applicant is a person with sufficient funds to visit Australia.

51. The visa applicant said she could not provide any documentary evidence in relation to the café because it is a cash only business. The visa applicant said she had run the café for 4 to 5 years. The review applicant said the visa applicant had conducted the café for 1.5 years. Against that conflicting evidence is the evidence from Mr Papas that the visa applicant has operated the café since early 2015 and the certificate  of registration of the café business which serve to indicate that the visa applicant commenced running the café in early 2015. The totality of the evidence about the visa applicant’s café indicates that it is a business with a small turnover which can be run by family members in her absence. For these reasons the Tribunal fails to be satisfied that the visa applicant’s café business would act as an incentive for her to return to Vietnam upon the expiration of a Visitor visa. 

52. For the above reasons the combination of the above factors does not enable the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia.

53. 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

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

    Deborah Morgan
    Member