1516527 (Migration)

[2016] AATA 4100

1516527 (Migration) [2016] AATA 4100 (12 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs THI THU PHUONG PHAN

VISA APPLICANT:  Mr KHAC TRINH PHAN

CASE NUMBER:  1516527

DIBP REFERENCE(S):  02044931

MEMBER:Miriam Holmes

DATE:12 July 2016

PLACE OF DECISION:  Melbourne

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 12 July 2016 at 2:57pm

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 22 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, Mr Phan, applied for the visa on 4 September 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 intends to stay temporarily in Australia for the purpose for which the visa is granted.  

5. The review applicant, Mrs Phan (the visa applicant’s sister), appeared before the Tribunal on 8 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Phan, the visa 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 matter should be remitted for reconsideration.

   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 his sister (the review applicant) and his niece and nephew. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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)). The visa applicant has previously travelled to Australia between 10 November 2005 and 8 December 2005 on a tourist (subclass 676) visa. On the evidence available the Tribunal finds there is no evidence of substantial non-compliance with the conditions of the last substantive visa held by the visa applicant.

11. 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 may be subject are as follows (cl.600.611):

    ·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.

12. The Tribunal has considered below the visa applicant’s intention to comply with the conditions of the visa.

13. The Tribunal has also considered other relevant matters (cl.600.211(c)) as discussed further below.

14. The Tribunal made the following findings of fact based on the documentary and oral evidence available.

15. The visa applicant was born in 1970 in Vietnam, and is aged 46 years and is a citizen of Vietnam.

16. The visa applicant lives with his younger brother, Khac Linh Phan, in Vietnam. The visa applicant stated that he lives with his brother because after the visa applicant’s divorce his ex- wife remained residing in the family home and he transferred his household registration to his younger brother’s home. He explained that he does not have sufficient money to buy a house of his own and consequently resides with his brother. He confirmed that there is a land title for his former family home in his name and his ex- wife’s name, although after the divorce he let his wife reside there.

17. The visa applicant was married however he divorced in 2006. The applicant has one adult son aged approximately 20 years old. The visa applicant’s son currently studies and also works. The visa applicant’s son regularly visits the visa applicant.

18. The visa applicant’s parents reside in Vietnam and they are retired. The visa applicant has five siblings, four siblings live in Vietnam and one sibling (the review applicant) resides in Australia. The visa applicant’s four siblings who reside in Vietnam are all married and have children. In relation to the siblings in Vietnam, the visa applicant’s two brothers and one sister are working, and the other sister currently stays at home.

19. The review applicant travelled to Australia in 2001 from Vietnam on a prospective marriage visa. She subsequently was granted a partner visa and currently remains in Australia as a permanent resident on a subclass 155 resident return visa. The review applicant returns to Vietnam sometimes, and she last returned to visit Vietnam in 2014. The review applicant is divorced, having separated from her husband in 2006. The review applicant has one child, a son aged 13 years, who is currently attending secondary school. The review applicant is not working but relies on Centrelink benefits in the vicinity of $700 per fortnight to meet her daily expenses, including her mortgage. The review applicant owns her residential property, although she is paying a mortgage with repayments of approximately $500 per month. The review applicant currently lives with her son and her niece.

20. The visa applicant’s niece, who lives in Australia with the review applicant, is 29 years of age and she currently works picking mushrooms at a mushroom farm. The visa applicant’s niece travelled to Australia on a partner visa, but is now the holder of a student visa. The niece earns approximately $700-$800 per week. The niece is the daughter of Thi Thu Thuy Phan, the visa applicant’s sister, who lives in Vietnam. The visa applicant also has an auntie and uncle who reside in Australia.

21. The visa applicant and review applicant both gave consistent evidence that the visa applicant wishes to travel to Australia for approximately one to 2 months to visit the review applicant, his nephew (the review applicant’s son) and niece. The visa applicant stated that he wished to stay in Australia for a period of one to 2 months but could not stay any longer than two months as he has a business in Vietnam and cannot be away for too long.

22. The visa applicant and review applicant both gave evidence that the applicant owns a shop in Vietnam which sells beer and soft drink. The business is known as Thanh Sang. In support of the visa application, the visa applicant provided a number of documents pertaining to the business. As noted by the decision delegate, the business paperwork that was provided by the visa applicant for the visa application included tax receipts and a letter  from the tax office that indicate that the owner of the business is Mr The Kiet Tran. The documents also included a certificate of business registration setting out that the business deals with beer and soft drink and lists the owner of the business as Mr The Kiet Tran. The visa applicant explained that the business operates from a house owned by Mr The Kiet Tran. He stated that he rents the house to operate the shop but did not sign a lease agreement with the owner. He stated that because he did not sign a lease agreement, he asked the owner of the house (Mr The Kiet Tran) to be officially listed as the owner of the business. Consequently when he registered the business with the relevant authorities he put the name of Mr The Kiet Tran as the business owner. The visa applicant stated that he had to list the name of Mr The Kiet Tran as the owner because he had not completed and signed a lease before registration of the business. He also stated that Mr Tran was a friend of his and his friend agreed because there would not be much tax payable and his friend agreed there was no need to sign a lease. The visa applicant referred the Tribunal to the certification that he obtained from the local authorities to confirm that he was indeed the owner of the business. The representative took the Tribunal to a document in Vietnamese and the accompanying translation and the representative noted that the translation was poor and appeared to have been prepared using Google translate. The representative requested that the interpreter engaged by the Tribunal review the document and describe its contents to the Tribunal. The interpreter confirmed that the translation of the document was poor and did not accurately reflect the terms of the certification document that the visa applicant had provided in the Vietnamese language. The interpreter stated to the Tribunal that the certification document stated that it was an application to the People’s Committee of Tac Van Commune Ca Mau City to certify that registration for the Thanh Sang shop number 61A8008149 with the name of Mr The Kiet Tran  actually belongs to the visa applicant and that the reason why is that when the visa applicant applied for business registration he did not satisfy all the business registration requirements and consequently he asked Mr The Kiet Tran to be listed as the owner of the business. The interpreter confirmed the document was signed by the visa applicant and Mr The Kiet Tran and by a representative of the Commune.

23. The visa applicant told the Tribunal that if the visa applicant travelled to Australia then a relative, his sister, and his staff would continue to operate the shop whilst he was absent in Australia. He stated that he would be prepared to allow them to run the shop until he returned to Vietnam.

24. The visa applicant and review applicant both gave consistent evidence that the applicant earns approximately 15,000,000 to 20,000,000 VND a month in earnings from the business. The review applicant stated this was equivalent to just over AU$1000 in monthly earnings from the business. The visa applicant gave evidence that he had accumulated funds from the business and that before he had applied for the visitor visa he had put AU$25,000 into a bank account to use for his business, but also had allowed US$3000 to be used for the purposes of travelling to Australia. The Tribunal deferred making a decision to enable the visa applicant to provide the evidence of this savings bank account. After the hearing the Tribunal received untranslated bank documents relating to an account in Vietnim Bank which showed the visa applicant as the owner of a bank account with a balance of 80,250,000VND (approximately $4,700 AUD) as at 8 July 2016.

25. After consideration of all the evidence, the Tribunal is satisfied that the visa applicant does operate a retail business in Vietnam and earns in the vicinity of $1000 AUD per month.

26. The review applicant and visa applicant both gave evidence that the review applicant would pay for the fares for the visa applicant to travel to Australia and she would also provide accommodation and meals whilst the visa applicant was in Australia and that the visa applicant would meet his own personal costs, including any personal shopping. The Tribunal expressed its concern as to whether the review applicant would have sufficient funds to financially support the visa applicant travelling to Australia, given that she is in receipt of Centrelink benefits and has to support her son and has a substantial monthly mortgage repayment. The review applicant stated that she had saved $5000 in the bank to assist in meeting the costs of her brother travelling to Australia and to support him whilst he is in Australia. The review applicant stated that she had accumulated these funds from work that she had undertaken in previous years as a casual and was paid cash and then deposited these sums in the bank. The Tribunal noted that it had her bank statements in March and April 2015 which indicate that she had very little savings for most of that period and was reliant on Centrelink benefits and that there was unexplained cash deposit of $5000 in that account. The review applicant stated that she still had the money available to support her brother. The Tribunal adjourned the matter for their visa applicant to provide this additional information regarding the bank savings of the review applicant. After the hearing the Tribunal received bank statements for Ms Phan’s account showing that the applicant makes regular cash deposits of $1500, in addition to her Centrelink payments, and in June 2016 she had savings in excess of $4,000. The balance as at 7 July 2016 was in excess of $5,000.

27. During the hearing, the Tribunal expressed its concern that in the circumstances the visa applicant may seek to come to Australia and remain Australia in order to generate a higher income in Australia than he can earn in Vietnam. In making this preliminary assessment the Tribunal noted the review applicant was not currently working, there was no documentary evidence of any income of the visa applicant, that she has stated the visa applicant only earned $1000 per month, the review applicant was reliant on Centrelink benefits and supporting her son and that her niece was earning approximately $700 a week working in Australia in a mushroom factory. In response, the review applicant stated that she did not have much money but she manages with what she has and she would she did invite him to Australia and will take care of him with the money she has and that she has the $5000 in savings. The review applicant indicated that she was also prepared to pay a security bond in order for her brother to travel to Australia and that she would borrow money from a bank to pay for a security bond and then repay the bank once her brother left and she had been refunded the monies from the government

28. The Tribunal expressed its concern that the visa applicant may not be generating income in Vietnam, noting that he is living with his brother, there is no documentary evidence of any income being earned by the visa applicant in Vietnam and that he may seek to come to Australia to earn income and had little incentive to return to Vietnam. The review applicant replied that the visa applicant will return to Vietnam because of his parents, his siblings, his son and his shop. The visa applicant stated that he would return to Vietnam because of his son, his parents and he cannot leave his business. The visa applicant stated that he had never thought of coming to Australia to earn income and that that he just wished to visit his family and would visit the snow whilst he was in Australia. He said that he only wished to visit his family and do some sightseeing and reiterated that he travelled to Australia in 2005 for a month and then returned home back to Vietnam.

29. The review applicant gave evidence that her sister travelled to Australia for approximately 2 months in 2006 or 2007 and that the review applicant’s father travelled to Australia for approximately 40 days in 2010 /2011. They both travelled back to Vietnam in accordance with the terms of the visas.

30. The visa applicant and review applicant both gave evidence that the visa applicant will also undertake sightseeing in Australia, and if he comes in winter, he plans to see the snow.

31. In relation to the non- declaration of a previous visitor visa application refusal, the review applicant stated that the previous visitor visa application was made in respect of her brother but the application was prepared by her niece who currently lives in Australia. She said that the visa application was refused and the visa applicant was unaware of the application, and her niece simply told the visa applicant that he could not come to Australia. The review applicant stated that the visa applicant had not notified the migration agent when completing the current visitor visa application form of the previous refusal of the visitor visa application as he did not know that a visitor visa application had been made in his name and been refused.

32. After carefully considering the evidence the Tribunal is satisfied that the visa applicant will comply with the conditions and genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal accepts that the visa applicant has travelled to Australia previously on a visitor visa and complied with the terms of that visa. Similarly, the visa applicant’s sister and father have also travelled to Australia and abided by the terms of the visa. The visa applicant has close family in Vietnam, including his son, parents and four siblings. Further, the visa applicant has the financial incentive of his business to return to Vietnam. These factors are all indicative that the visa applicant will comply with the conditions of the visa, that he has demonstrated a history of compliance and he has family and financial incentives to return to Vietnam. The review applicant is also prepared to pay a security bond by taking out a loan to secure a visitor visa for her brother. The Tribunal notes that there is a risk that the visa applicant may be intending to remain in Australia in the long term as he can generate a higher income in Australia and reside with his sister whilst doing this, the Tribunal accepts this is a risk, but on balance the Tribunal assessed that the visa applicant  will comply with the visitor visa conditions and genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

33. 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

34. 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.

    Miriam Holmes
    Senior Member