1515229 (Migration)

[2016] AATA 3280

1515229 (Migration) [2016] AATA 3280 (11 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chu Thach

VISA APPLICANT:  Ms Thi Sach Thach

CASE NUMBER:  1515229

DIBP REFERENCE(S):  02048521

MEMBER:Suzanne Carlton

DATE:11 February 2016

PLACE OF DECISION:  Adelaide

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 11 February 2016 at 5:32pm

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 13 October 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 2 October 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 delegate was not satisfied that the visa applicant genuinely intended to visit Australia on a temporary basis.

5. The review applicant was represented in relation to the review by his registered migration agent.

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 brother, the review applicant and assisting her niece with her new baby. 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. The applicant last visited Australian in 2008.  She departed within the period of her visa validity.  There is no information before me to indicate that she did not comply with her visa conditions.

11. I note that prior to that visit, the visa applicant’s application for a visitor’s visa was refused, as were a number of similar applications made following that 2008 visit.  While these refusals might indicate previous non-compliance, there is no information before me to otherwise suggest non-compliance.  I therefore accept that the applicant has substantially complied with visa conditions imposed in 2008.

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.600.611(2)):

    ·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 visa applicant is a 64 year-old retired farmer.  She is said to speak no English and have no other skills with which she might undertake employment in Australia.  I note that the visa applicant’s niece owns a wholesale fruit and vegetable business and accept the possibility that the visa applicant could seek employment in that business.  However, given her age, the stated purpose of her visit, her language ability, her limited skill set and her status as a retired person, I am satisfied that she will comply with condition 8101.

14. Given the visa applicant’s English language ability and age, I am satisfied that she is unlikely to undertake study or training in Australia and I am satisfied that she will comply with condition 8201.

15. With respect to conditions 8503 and 8531 I have weighed the number and significance of family she has in Australia (her brother, his daughter and a cousin) against the number and significance of family she has in Vietnam (her children, grandchildren, three siblings and multiple niece and nephews). I have also weighed up the attraction to a 64 year old retired woman with no English skills of resettling in Australia.  Finally, I have considered what other benefits her home country has to offer her were she to return and accept that in addition to her family and familiarity with her country, she owns land there. 

16. The Tribunal has also considered all other relevant matters (cl.600.211(c)) including the apparent good character of the sponsor and review applicant. 

17. 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

18. 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.

    Suzanne Carlton
    Member