1601952 (Migration)

[2016] AATA 4809

1601952 (Migration) [2016] AATA 4809 (13 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Robert Kenward

VISA APPLICANT:  Mrs Diep Tuong Vi Le

CASE NUMBER:  1601952

DIBP REFERENCE(S):  BCC2015/3794653

MEMBER:K. Chapman

DATE:13 December 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 13 December 2016 at 3:26pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 – Sponsored Family stream – Genuine temporary entrant – Sponsored by husband – Marriage after two months – Credibility issues – Not enough strong incentives to return

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211, cl 600.612, Condition 8531

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 21 January 2016 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, Mrs Le, applied for the visa on 3 December 2015. This application was sponsored by her husband, Mr Kenward. 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 because she was assessed as not genuinely intending to stay temporarily in Australia and also to be unlikely to abide by conditions attached to the visa. On 18 February 2016 the sponsor for the visa and review applicant, Mr Kenward, applied to the Tribunal for review of the visa refusal decision.

5. The review applicant appeared by video link before the Tribunal on 2 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence over the telephone from the visa applicant who was located in Vietnam. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was granted until 7 December 2016 to submit further evidence in support of his application. A handwritten letter from the review applicant was received by that date and has been duly considered by the Tribunal.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

7. The visa applicant, Ms Le, is a 38 year old year old national of Vietnam. She has travelled twice previously to Australia and on the last visit she married her husband, Mr Kenward, who is a 63 year old Australian Citizen by birth. Ms Le has two school aged children from a previous relationship currently living with her in Vietnam. She was sponsored by Mr Kenward for the Visitor visa so she could visit him with the children.

   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. In the present case, the visa applicant seeks the visa for the purposes of visiting her Australian Citizen husband, the review applicant. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Evidence at the hearing

9. At the hearing the review applicant told the Tribunal he wanted the visa applicant and her children to visit him over the Christmas period. He advised he met the visa applicant on her last visit to Australia through the visa applicant’s sister, Hahn, who is a friend of his. The review applicant indicated he married the visa applicant on 27 August 2015 whilst she was last in Australia after knowing her for approximately two months. He told the Tribunal that she did not bring her children with her on that visit. The review applicant gave evidence he is self-employed and the visa applicant has business interests in Vietnam, such that there would be no need for her to work if she came to Australia as a visitor.

10. The review applicant advised the visa applicant had another sister living in Darwin. He did not know her name. The review applicant also described the visa applicant’s family in Vietnam as being comprised of her mother and various siblings although he was not sure he knew all of them. The review applicant has travelled to Vietnam and met some of the visa applicant’s family. He described the family as ‘very dysfunctional’, indicating a level of conflict was present amongst the siblings. The Tribunal put it to the review applicant that such dysfunction would not act as an inducement for the visa applicant to return to Vietnam. He responded that her children and business interests would see her return.

11. The Tribunal asked the review applicant what arrangements would be made for the schooling of the visa applicant’s children if they came to Australia as visitors. He was not sure what the arrangements would be. The Tribunal also asked the review applicant to provide more detail of the visa applicant’s financial position in Vietnam. He advised she was very well off, owns two mushroom farms, two restaurants and buys and sells houses. However, he indicated he has never seen her bank account statements and not really asked her in detail about her finances. The Tribunal asked how the visa applicant’s business interests would be maintained if she came to Australia and he advised that her staff would take care of this. However, he also revealed that he hasn’t spent much time himself in her business premises. The review applicant advised the Tribunal he could submit documents concerning the visa applicant’s business affairs and he was granted until 7 December 2016 to do so. In the handwritten letter received from him following the hearing, the review applicant indicated he had misplaced these business documents.

12. The visa applicant gave oral evidence to the Tribunal that she was hoping to visit Australia to see her husband and allow her children to spend more time with their step-father. She described her first visit to Australia in 2008 as for the purpose of visiting her sister. The visa applicant explained her previous (second) visit in 2015 was for the purpose of visiting her sister and getting to know the man who would become her husband. The visa applicant advised that she did not know her husband before meeting him in Australia, yet she didn’t bring her two children on the last visit because they were in school and she wanted to meet her husband through her sister. She indicated she was married to the visa applicant on 27 August 2015.

13. The Tribunal asked the visa applicant about the schooling arrangements for the children and was told they were in year one and year seven respectively. She indicated that if granted the visa she would only stay for a short trip to accommodate their schooling in Vietnam. The Tribunal asked about the role of the father of the children and was advised he lives in Vietnam and sees them weekly. When asked by the Tribunal if she had discussed with the father bringing the children to Australia for a visit, the visa applicant indicated that she had not done so as her visa application was still uncertain and in any event she did not need his permission to bring them.

14. The visa applicant gave evidence that in Vietnam she owned a restaurant and mushroom farm, in addition to deriving income from a real estate business. She described her financial position in Vietnam as comfortable and indicated she had run her restaurant for the last three years. She explained that on her previous trip to Australia a live in manager ran the restaurant for her over the three months of her absence. When asked by the Tribunal if the manager could run the business in her absence for an extended period she replied that it was possible.

15. The review applicant was asked by the Tribunal about her family circumstances and she explained she had her mother, three brothers and two sisters living in Vietnam. She indicated that two other sisters, Hanh and Huong, lived in Australia and added that Hanh who lives in Cairns was her closest sibling of all. Hanh was the person who introduced her to the review applicant.

16. The Tribunal observed that the Queensland Marriage Certificate submitted by the review applicant indicated the couple were married on 25 August 2015, not 27 August 2015 as they had both indicated at the hearing. This was put to the visa applicant who attributed the discrepancy to her poor memory as a result of working long hours. The Marriage Certificate also listed the visa applicant’s occupation as unemployed and the Tribunal put this to her as inconsistent with regard to her evidence of running her restaurant for the last three years. She responded that she was surprised when she saw this on the Certificate and was not sure how it came to be.  

17. Pursuant to the provisions of s.359AA of the Act, the Tribunal raised the following information with the review applicant and provided him with the opportunity to comment on or respond to it (he did not seek further time to respond despite being afforded the opportunity to do so):

    (a)The inconsistency between the visa applicant’s oral evidence concerning her business interests and the Marriage Certificate listing her occupation in August 2015 as unemployed. This information was relevant as it tended to suggest the visa applicant’s personal circumstances would encourage her to remain in Australia and not return to Vietnam. The review applicant responded that the marriage documentation was completed by the visa applicant’s sister Hahn and the ‘unemployed’ notation was made in error by her;

    (b)The visa applicant’s evidence that she had not informed her children’s father of the intended visit to Australia and that she did not require his permission to bring the children to Australia. This information was relevant as it tended to suggest the visa applicant’s personal circumstances would encourage her to remain in Australia and not return to Vietnam. The review applicant responded the visa applicant would have to inform the father of the trip and that the children would be going back to Vietnam following their holiday;

    (c)The visa applicant’s evidence that her sister Hahn was her closest sibling. This information was relevant as it tended to suggest the visa applicant’s personal circumstances would encourage her to remain in Australia and not return to Vietnam. The review applicant responded that Hahn would have no influence in keeping the visa applicant in Australia; and

    (d)The visa applicant’s evidence that her restaurant manager could manage her restaurant in Vietnam for a longer period of time. This information was relevant as it tended to suggest the visa applicant’s personal circumstances would encourage her to remain in Australia and not return to Vietnam. The review applicant responded that the visa applicant needed to return to Vietnam to manage her restaurant as she did not trust the manager to bank money properly and she needed to be in location to maintain control of her business. 

    The Tribunal has duly considered the responses of the review applicant in its decision making process.

    Evidence submitted following the hearing

18. The Tribunal notes the review applicant submitted a handwritten letter on 7 December 2016 explaining the discrepancy in the marriage date mentioned at hearing. He attributed this to his own fault on account of the celebrant changing the date of the wedding ceremony and him conveying the information inaccurately to the visa applicant. The Tribunal does not accept that two persons in a genuine relationship would both forget the date of their wedding just over one year after it was held. The letter also indicated the review applicant had misplaced documents relating to the business affairs of the visa applicant in Vietnam, but he maintained the purpose of her visit was to enjoy Christmas in Australia. The Tribunal has duly considered the contents of this letter in its decision making process.

    Analysis

19. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose of visiting her Australian Citizen husband, the Tribunal must consider whether 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 gave oral evidence to the Tribunal she last visited Australia on a Visitor visa between June and September 2015 that was sponsored by her sister. Information from Departmental records confirms the visa applicant was present in Australia from 17 June 2015 until 16 September 2015 as the holder of a Subclass 600 visa in the Sponsored Family stream, with conditions 8101, 8201, 8503 and 8531 attached. Both the visa applicant and the review applicant advised the Tribunal that all conditions were complied with on that visit. The Tribunal accepts this evidence and affords some weight to it. Further, there is no Departmental information before the Tribunal to suggest the visa applicant did not comply with the conditions attached to her last substantive visa.

20. 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; and

    ·8531 – must not remain in Australia after end of permitted stay.

21. For the reasons detailed below, the Tribunal is not satisfied the visa applicant would return to Vietnam at the end of her proposed visit to Australia. Accordingly, the Tribunal is not satisfied she would satisfy condition 8531.

22. The Tribunal has also considered all other relevant matters as required by cl.600.211(c). The personal circumstances of the visa applicant suggest there are significant pull factors encouraging her to remain in Australia if granted a Visitor visa and limited factors influencing her return to Vietnam. The visa applicant is married to an Australian Citizen and wishes to bring her two school aged children with her on a holiday over Christmas for an unspecified period. The Tribunal notes the visa applicant did not bring her children with her on her last visit when she married the review applicant. Further, the evidence suggests the children’s father has no knowledge of the proposed holiday and limited ability to influence the return of the children to Vietnam. The Tribunal finds that the presence of the children with the visa applicant if she were to travel to Australia would operate as a significant disincentive for her to return to Vietnam following the expiry of a Visitor visa.

23. The Tribunal had no persuasive evidence before it verifying the visa applicant’s business and property interests in Vietnam. The review applicant did not provide any supporting documentation concerning these interests following the hearing despite being afforded the opportunity to do so. The Marriage Certificate listing the visa applicant’s occupation as unemployed casts doubt upon the nature of her business interests and finances. The Tribunal is not satisfied the visa applicant has sufficient business interests that would outweigh factors influencing her to remain in Australia. In any event, the visa applicant also advised that a manager could run her restaurant for an extended period of time in her absence and this is another factor reducing her need to return to Vietnam.

24. The visa applicant’s closest sibling is her sister Hahn who lives in Cairns near the review applicant and introduced the couple. The Tribunal finds that should the visa applicant and her children visit Australia, the proximity to Hahn would act as a significant incentive for the visa applicant to remain following the expiry of a Visitor visa. Further, having the visa applicant and her children living with the review applicant in proximity to Hahn would also increase the aforementioned incentive to remain. 

25. The Tribunal has balanced several considerations in making its decision in the present matter. The Tribunal has placed some weight upon the unblemished immigration record of the visa applicant concerning her 2008 and 2015 visits to Australia. However, the lack of incentive for her to return to Vietnam and the significant factors influencing her to remain in Australia following the expiration of a Visitor visa, such as the presence of the review applicant, her sister Hahn and her children, outweigh consideration of the visa applicant’s lawful immigration history. After careful consideration, the Tribunal finds the visa applicant would not comply with condition 8531 if she were to be granted a Visitor visa, and that consideration of all other relevant matters suggests the visa applicant would seek to remain in Australia beyond the expiration of such a visa.

26. For the above reasons the Tribunal is not 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 not met.

    DECISION

27. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    K. Chapman
    Member