1514377 (Migration)

[2016] AATA 4191

1514377 (Migration) [2016] AATA 4191 (28 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Thanh Houng To

VISA APPLICANT:  Ms Thi Thanh Ha To

CASE NUMBER:  1514377

DIBP REFERENCE(S):  01015932

MEMBER:Christian Carney

DATE:28 July 2016

PLACE OF DECISION:  Sydney

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 28 July 2016 at 4:03pm

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 28 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 19 August 2015. At the time, 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. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations), which includes Clause 600.211.

3. 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 she has complied substantially with the conditions attached to the last substantive visa she held; whether she intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter. 

   Evidence before the Tribunal

4. The Tribunal has before it the Department’s file containing the visa applicant’s application for the visa, including numerous pieces of documentary evidence about the visa applicant’s circumstances in Vietnam and the review applicant’s circumstances in Australia.  The Tribunal also has before it a copy of the delegate’s decision record refusing the grant of the visa.  The review applicant appeared before the Tribunal on 12 July 2016 and gave evidence in support of the application through an accredited Vietnamese interpreter. 

5. The evidence before the Tribunal indicates that the visa applicant is a 34 year old married mother of two children who resides in Cam Trung, Cam Pha in Quang Ninh province in north-east Vietnam.  She lives with her husband and seven and nine year old sons.  She is a qualified accountant and works as an accountant in a trading company in Cam Trung, and she provided a letter confirming her employment.  Her husband works for the same company as a manager.  She provided documentary evidence to demonstrate that she and her husband own the house they live in and have considerable savings in a bank account.  Her parents and her husband’s parents live in a neighbouring suburb in Cam Trung, and assist them with the care of their sons. 

6. The visa applicant applied for the current visa so she could visit her sister (the review applicant) and niece in Sydney.  In her application, she states that her sister ‘lives alone with her little daughter’ and that she would like to visit them and see where and how they live, during her vacation period.  Her mother-in-law has agreed to look after two children while she travels to Australia, and she provided a power of attorney and authorisation letter to that effect.  At the hearing, the review applicant confirmed that the visa applicant intends to stay in Australia for a period of two to four weeks only. 

7. The review applicant has resided in Australia since 2009.  She is separated from her husband and is a single mother of a three year old daughter.  Her husband left her while she was pregnant and he has no relationship with her or her daughter.  Apart from two cousins, she has no family or support network in Australia.  She is the primary and only carer for her daughter and relies on a Centrelink benefit for income.  She and her daughter live in rental accommodation, and she described her life as difficult due to the separation from her family in Vietnam. 

8. The review applicant has sponsored her mother to Australia on a Visitor visa on three separate occasions, including in 2015.  Her mother complied with the conditions of each visa and departed Australia within the period permitted by her visa.  The review applicant and her daughter travelled to Vietnam on two occasions in 2015 to spend time with her family.  Her mother paid her travel expenses.  The review applicant described the visa applicant’s marriage as normal and stated that her sister and brother-in-law are committed to their relationship and marriage. 

9. The visa applicant has not before left Vietnam.  The delegate was not satisfied that the evidence that was provided in support of the application indicated that there were sufficient incentives for the visa applicant to return to Vietnam before the expiry of the visa, mainly because she did not provide evidence of an income stream or any prior travel outside Vietnam.

10. Both the review applicant and her migration agent submitted that they were not aware of any circumstance to indicate or suggest that the visa applicant would not return to Vietnam after a brief visit to Australia to see her sister and niece. 

    Consideration and assessment of evidence

11. In the present case, the visa applicant seeks the visa for the purposes of visiting her family in Australia, which is a purpose for which a visa in the Tourist stream may be granted: cl.600.221.

12. 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)).  However, as noted above, the visa applicant has not before travelled to Australia or left Vietnam in the past.  The evidence before the Tribunal indicates that the review applicant’s mother has travelled to Australia on a Visitor visa on three separate occasions, each time sponsored by her daughter, the review applicant, and that she has at all times complied with the conditions of the various visas she has held.  In the Tribunal’s view, this reflects positively on the review applicant and her family’s compliance with Australia’s migration system. 

13. The applicant gave her evidence in a straightforward and clear manner and there is nothing in the evidence before the Tribunal to contradict any of the statements she or her sister, the visa applicant, have made.  Having carefully considered the evidence before it, and having questioned the review applicant in detail about their intentions at the hearing, the Tribunal accepts that the primary reason for the visa applicant applying for the current visa was to visit her sister and niece in Sydney and to see where and how they live.  On the evidence before it, the Tribunal accepts that the visa applicant is married and lives with her husband and two young children in the house they own in Cam Trung, and that both she and her husband are in ongoing employment, and have access to a considerable amount of money in a bank account.  For these reasons, on the evidence before it, the Tribunal accepts that she has a genuine intention to enter and remain in Australia temporarily for the purpose of visiting her sister and niece, and that she does intend to work in Australia, or do any other act that would cause her to breach the conditions of the visa. 

14. In making this finding, the Tribunal has taken into account the evidence that, in the event the visa applicant visited Australia, her mother-in-law and extended family would take over her duties in caring for her two children in Cam Trung.  While the presence of her sister and niece in Australia may present a reason for her to stay longer in Australia, the Tribunal considers that the incentive of her responsibilities to her two children and husband and her employment in Vietnam, as well as her strong cultural and social ties to Vietnam, outweighs this concern, as does the awareness of all relevant people of the consequences on future applications by family members if she does not comply with the conditions of the visa. 

15. For these reasons, on the evidence before it, 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

16. 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.

    Christian Carney

    Member