1517592 (Migration)

[2016] AATA 3642

1517592 (Migration) [2016] AATA 3642 (30 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Chompoonut Khammoon

VISA APPLICANT:  Miss Amonrat Khammoon

CASE NUMBER:  1517592

DIBP REFERENCE(S):  139641

MEMBER:Nicola Findson

DATE:30 March 2016

PLACE OF DECISION:  Perth

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 30 March 2016 at 1:33pm

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 3 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 27 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 intended a genuine visit and would abide by the visa conditions.

5. The review applicant appeared before the Tribunal on 24 March 2016, to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr James Caton.

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 sister, who resides as a citizen in Australia.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

   Background

9. The visa applicant has previously travelled to Australia on subclass 676 tourist visas between September and December 2009, and between July and November 2010, and on these occasions she left Australia prior to the expiration of her visas.  Her movement records confirm this, and it is accepted by the Tribunal.  On 6 February 2012, the visa applicant was granted a further tourist visa until 15 March 2012.  Information before the Tribunal indicates that she mistakenly thought that she had been granted a 3 month visa, as the previous 2 visas had been, and departed Australia on 10 May 2012.  The Tribunal was told that when the visa applicant was approached at the airport about overstaying her visa, she was extremely shocked and explained that she thought that she had been granted a visa for up to 3 months and would certainly have left Australia sooner if she was aware that she was only permitted to stay for 1 month.   

   Findings against the criteria

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)).

11. The notion of substantial compliance with visa conditions has received considerable judicial consideration, particularly in the context of student visas.  The substantial compliance requirement contemplates that some degree of non-compliance with visa conditions may be permitted.  This means that absolute technical compliance is not required.  Further, the Court in Kim v Witton (1995) 59 FCR 258 agreed with the Tribunal that an applicant might “comply substantially” with a condition imposing a prohibition, in that case a “no work” condition, even if the condition has been breached. In other words, the mere fact that an applicant is found in breach of a visa condition does not preclude them from meeting the requirements of the substantial compliance criterion.

12. However, there are some conditions to which the concept of substantial compliance has no logical application.  In such cases, the regulations are to be read as not admitting any qualification of substantial compliance. 

13. The issue of substantial compliance will only arise to those conditions which have been breached and to which the concept can logically apply.  In determining whether an applicant has complied substantially with such a condition, the Tribunal is entitled to take into account a range of matters according to the evidence in the particular case, including subjective matters such as the applicant’s reasons for failing to satisfy the condition.

14. For example, in Kim v Whitton Sackville J considered the relevant circumstances in that case as including:

    ·The nature of the breach of the condition;

    ·The significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

    ·Whether or not the applicant deliberately flouted the condition; and if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

15. However, there is no rigid test to be applied, and these considerations should not be elevated to the status of relevant considerations in every case.  His Honour made it clear that the factors listed were not intended to be exhaustive, and that in general, it is a matter for the Tribunal to assess the weight to be accorded to such factors, having regard to the circumstances of the case.

16. Having considered the decision in Kim v Whitton it appears clear that the visa applicant did not deliberately set out to overstay her last Tourist visa, given her explanation for overstaying and given that there is no evidence of non-compliance with the conditions of her previously held visas.  On the basis of the evidence before it, the Tribunal finds that the visa applicant has substantially complied with her previously held visitor visas.

17. 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

18. There is no suggestion that the visa applicant is enrolled in any course of study or will seek to study or work in Australia. The Tribunal is satisfied that the visa applicant will abide by the conditions concerning work and study in Australia.

19. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

20. The evidence before the Tribunal, which is accepted by the Tribunal forms the basis of the following conclusions and findings:

    ·The review applicant is the sister of the visa applicant.

    ·The visa applicant is 32 years old, and is a citizen of Thailand.  Her mother and 7 siblings (including another Australian citizen sister), as well as her extended maternal and paternal family, also live in Thailand.  It is her intention to travel to Australia, for a 2 week period, to visit the review applicant and the review applicant’s husband, who recently married. 

    ·The applicants have another sister who has been living in Australia for over 20 years.

    ·The review applicant first came to Australia as the holder of a visitor visa in 1998, to visit her abovementioned sister.  She spent time in Australia again, subsequently, on another visitor visa.  The review applicant complied with the conditions of both of these visitor visas.  She was granted a permanent partner visa a few years later, when she married an Australian citizen and then, Australian citizenship in 2005.  The review applicant has 4 children - 2 daughters aged 15 and 9 who are in her care, as well as 2 adult daughters, all from previous relationships. 

    ·The review applicant assists her husband with the administrative side of his painting and decorating business, which was established in 1985, and generates a good income.

    ·The review applicant and her husband own a house together.

    ·The visa applicant has a settled and happy life in Thailand.  She lives with another sister, in Bangkok and has also worked in that sister’s business, as a Cashier / General Manager, since 2011.  The visa applicant is paid a regular, monthly salary of THB 20,000, in cash.  She is well educated and holds a Bachelor of Communication Arts Program in Public Relations from the Naresuan University.  The visa applicant has accumulated savings.  She, along with her siblings, also has a share in a small rice farm, inherited from their father, when he passed away.

    ·In addition to her visits to Australia, the visa applicant has travelled to other Asian destinations, including Laos, Burma, Cambodia and Singapore.  She has always returned to Thailand after her short holidays to these countries.

    ·The review applicant has invited the visa applicant to visit her in Australia, to maintain her family links.  Another sister has visited the review applicant in Australia for short periods on several previous occasions.  She has always complied with her visitor visa conditions. The review applicant has provided assurances that it is the visa applicant’s intention only to visit Australia and that she will abide by the conditions of her visa.  She would like the visa applicant to be able to return and visit her from time to time.

    ·The visa applicant will have limited living costs during her proposed stay, with accommodation and living expenses being provided for by the review applicant and her husband.  The Tribunal is satisfied that financial capacity in this regard has been demonstrated.

21. The Tribunal found the review applicant and her husband to be credible witnesses at the review hearing. 

22. The Tribunal is persuaded that the visa applicant has no intention of leaving her life and loved ones in Thailand to remain in Australia.  The Tribunal accepts that the visa applicant has a settled and comfortable life in her home country.  The Tribunal accepts that her mother and siblings who remain in Thailand provide a very strong incentive for her to return. It is accepted that the visa applicant has stable and ongoing employment in Thailand, and that she has some savings, and that she is part owner of a family property.  The Tribunal accepts that she has previously travelled to Australia as well as other overseas destinations for short visits in the past, and considers that this evidence of travel supports a finding that she intends to remain in Australia temporarily.  The Tribunal also notes that other close family members have a positive history of compliance with Australian visa requirements.  The visa applicant does have a good reason to visit Australia – to spend time with the review applicant and her husband.  But, the Tribunal is satisfied that the visa applicant also has very strong personal ties to Thailand, which would encourage her to return there after a short visit to Australia.

23. Taking into account all of the evidence before it, including evidence that was not previously available to the delegate at the time of decision, the Tribunal is satisfied that the visa applicant genuinely intends to stay in Australia temporarily while she is the holder of a visitor visa and will comply with all relevant conditions imposed on the visa.  The Tribunal is satisfied that after a visit to see the review applicant and her family, the visa applicant will depart Australia before her visa ceases.

24. 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

25. 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.

    Nicola Findson
    Member