1516942 (Migration)

[2016] AATA 4121

1516942 (Migration) [2016] AATA 4121 (20 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hao Duc Nguyen

VISA APPLICANT:  Miss Thi Ngoc Lan Nguyen

CASE NUMBER:  1516942

DIBP REFERENCE(S): BCC2015/3077369 BCC2015/3238236

MEMBER:Alison Mercer

DATE:20 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 20 July 2016 at 12:53pm

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 23 November 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 20 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 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, which required the delegate was satisfied that the applicant genuinely only intended to visit Australia temporarily. In reaching this conclusion, the delegate acknowledged that the visa applicant’s reason for wanting to visit Australia for 12 months was to spend time with her brother (the review applicant) and his family, but found that the visa applicant was unemployed (although she was the carer for her parents), had not travelled outside Vietnam before and that her proposed 12 month visit was inconsistent with the stated aim of her spending time with the review applicant’s children to help with their Vietnamese language skills. The delegate concluded that the visa applicant had demonstrated insufficient incentive to return to Vietnam, and did not genuinely intend to stay in Australia temporarily.

5. The Tribunal received a review application from the review applicant on 9 December 2015, which was accompanied by a copy of the delegate’s decision.  In addition, the review applicant provided the following:

   ·     biodata page from the visa applicant’s and review applicant’s Vietnamese passports and birth certificates (with English translation) establishing that the visa applicant and review applicant are siblings;

   ·     biodata pages and visa-stamped pages of the visa and review applicants’ parents’ Vietnamese passports evidencing their visit to Australia in 2005-2006;

   ·     evidence of the review applicant’s employment status and home loan statements and home ownership;

   ·     evidence of the review applicant’s academic qualifications and CV;

   ·     the review applicant’s Australian citizenship certificate issued 1 November 2006; and

   ·     statement from the review applicant in support of the visa applicant’s visa application.

6. The review applicant appeared before the Tribunal on 20 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Vietnam. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. In addition, the review applicant provided updated information regarding his employment status, current salary and home loan draw down facility.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting her brother (the review applicant) and his family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. 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)). It was not disputed that, in this case, the visa applicant has never previously visited Australia, and thus this factor has no relevance to her case.

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. Finally, the Tribunal must also consider all other relevant matters (cl.600.211(c)). The term ‘all other relevant matters’ is not defined in the Act or Regulations.

14. The Tribunal found the review and visa applicants to be credible and consistent in their evidence at the hearing. After carefully considering the oral and documentary evidence provided by the review and visa applicants and the review applicant’s agent, the Tribunal made the following findings:

    ·the review applicant is a 41 year old Australian citizen.  He is married with 3 children, being 2 daughters aged 11 and 10, and a son aged nearly 7;

    ·the review applicant and his wife have their own home in Melbourne.  The review applicant is employed as a Project Manager for the Department of Defence and is largely based in Canberra but commutes regularly back to Melbourne.  He is in constant telephone and video contact with his wife and children when not in Melbourne. The review applicant’s wife is employed full-time as an engineer;

    ·the review applicant has not seen his family in Vietnam since 2013 as he has limited ability to travel there due to his family and work commitments;

    ·the review applicant previously sponsored his parents to visit in late 2005/early 2006 and they abided by their visa conditions and left prior to the expiry of their visitor visas;

    ·they requested that the visa applicant be granted a visitor visa for 12 months as an ‘ambit claim’ but both the review applicant and visa applicant would be happy if the visa applicant could come to Australia for 3 or 6 months;

    ·the review applicant would like the visa applicant to visit Australia to recognise the fact that she has been the principal carer for their elderly parents and has not had the same opportunities as the review applicant and their other siblings, who are all tertiary-qualified with their own families to look after;

    ·her visit to Australia would enable her to see how the review applicant and his family live, and to provide a Vietnamese cultural and language resource for the review applicant’s children, who learn Vietnamese at weekend school but who are not confident speakers;

    ·the review applicant and her husband have good salaries plus a significant draw down facility on their home loan and would meet the visa applicant’s costs of travel to/from Australia and provide accommodation and food to her while she is here;

    ·the review applicant and visa applicant’s other siblings consist of 2 brothers (one of whom lives and works in Hue and the other whose family lives in Hue but who works in Ho Chi Minh City) and a younger sister who lives in Hue.  Their parents live in Hue in the family home and the visa applicant lives with them.  They are financially supported primarily by the review applicant and his older brother in Vietnam, although the other siblings also contribute funds and material goods;

    ·the visa applicant is their parents’ primary carer as she does not have a family of her own and was not able to complete secondary schooling due to a learning disability.  Her role is to take care of their parents.  However, for the duration of any visit to the Australia (up to a maximum of 12 months), her younger sister will be able to do so, with the assistance of her brother in Hue.  This can be done for up to 12 months but not for a longer term period as the other siblings are married with families of their own;

    ·the review applicant and his wife would also be prepared to lodge a bond with the Department of Immigration, if needed;

    ·the visa applicant is a 40 year old citizen of Vietnam. She lives in Hue in the family home and is supported by the family in her caring role for their parents.

    ·the visa applicant has not travelled to Australia before nor been outside Vietnam previously; and

    ·the purpose of the visa application is for the visa applicant genuinely to visit only to be here to see her brother and his family, whom she has not seen for 2 years.  She will return to Vietnam within the period allocated to her as she has strong family commitments there.

15. During the hearing, the Tribunal discussed with the review applicant the fact that the Department of Immigration’s Modified Non Return Rate Report (as at 30 June 2013) indicated that people from Vietnam travelling to Australia as visitors had a 1.44% overstay rate.  The Tribunal observed that this was not particularly high and there was no country evidence available to suggest that the economic or security conditions in Vietnam had deteriorated in any significant way since mid-2013.

16. The review applicant made the following points:

    ·some Vietnamese visitors might have an incentive to try to remain in Australia especially if economically disadvantaged;

    ·however, this is not reflective of the visa applicant’s family circumstances.  The visa applicant in Vietnam has strong family connections and responsibilities (being in particular her parents, but also the majority of her siblings and their families), and she has secure family accommodation there;

    ·the visa applicant has not considered staying in Australia permanently, or in the long term, as her significant ties are with Vietnam but she would like to be able to visit her brother, the review applicant, and his family, in Australia;

    ·the visa applicant has a relatively comfortable lifestyle in Vietnam and would not need to work in Australia due to the financial support of the review applicant and his wife.  She would stay in the home of the review applicant and her husband; and

    ·the visa applicant is aware that any failure to comply with visitor visa conditions by her would potentially harm her brother’s reputation and/or employment, and jeopardise his ability to sponsor other family members to visit Australia in future, and both she and the review applicant take this issue very seriously.

17. The Tribunal gives weight to the fact that the visa applicant has strong family ties and responsibilities as an incentive to return, combined with secure family accommodation.  It accepts that for the 3 -12 months of the planned visit to Australia, she would be financially supported by the review applicant and his wife, and that she will have her accommodation and food provided by them.

18. The Tribunal notes the concerns expressed by the delegate regarding the paucity of evidence of the visa applicant’s incentive to return, given she is not formally applied and appeared to want to stay in Australia for 12 months.  The Tribunal found that both the review applicant and the visa applicant were frank about the reasons for this, which is that they applied for the maximum visit period possible but would be happy for the visa applicant to visit for 3 or 6 months if 12 months was not seen as appropriate.The Tribunal finds this explanation plausible.  While it is a concern that the visa applicant does not have the incentive of continuing external employment to return to, the Tribunal accepts that she has the role of primary carer for her parents within the family in Vietnam.  It considers that the visa applicant’s other ties to Vietnam outweigh the fact that she is unemployed, in the sense of not being in the formal workforce.

19. Accordingly, the Tribunal is satisfied on the evidence before it that the visa applicant does not intend to study in Australia, that she does not intend to work (and would not need to due to a combination of accommodation and financial support from the review applicant and his wife), that she intends to visit only to see her brother, the review applicant, and his family, and that she would depart within the terms of any visa granted to her.

20. 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

21. 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.

    Alison Mercer
    Member