1602788 (Migration)

[2016] AATA 4600

1602788 (Migration) [2016] AATA 4600 (25 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Nam Pham

VISA APPLICANT:  Mr Van Thuc Pham

CASE NUMBER:  1602788

DIBP REFERENCE(S):  BCC2015/3846398

MEMBER:Mary Cameron

DATE:25 October 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 25 October 2016 at 11:34am

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 24 December 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 13 December 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 applicant had demonstrated sufficient evidence that he would comply with the conditions of a visa and return home at the end of his proposed stay in Australia.

5. The review applicant appeared before the Tribunal on 20 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. 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 his registered migration agent. The representative attended the Tribunal hearing.

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 family members in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. The visa applicant has never been to Australia and therefore there is no evidence of any failure to comply with the conditions of any previous visa.

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 would be subject may be as follows (cl.600.611(3)):

    8101 – must not work in Australia

    8201 – must not engage in study or training in Australia for more than 3 months

12. There is no information before it to suggest that the visa applicant intends to work or study in Australia.

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

14. The review applicant is a thirty four year old Australian citizen. The visa applicant is his older brother. He is forty six and a national of Vietnam.

15. The review applicant’s evidence is that he last saw the visa applicant in 2003 when both were living in Vietnam and the visa applicant departed that country to work in Taiwan, and the review applicant went away to undertake his military service, and then later to work in South Korea.

16. The review applicant told the Tribunal that the visa applicant is married and has two children who are both young adults of about twenty two and nineteen. The elder is studying in Russia and the younger in South Korea. His parents live close to the visa applicant and his wife in Vietnam and are aged eighty seven and eighty four, and are reliant on the visa applicant for care and support. The parties have five other siblings, all of whom live in Vietnam. None of them has ever travelled to Australia.

17. The Tribunal discussed with the review applicant the reasons for his brother’s proposed visit. The review applicant told the Tribunal that he they have not seen one another for many years, and his brother has not had the opportunity to meet the review applicant’s wife and children. He has a fifteen year old step-daughter and he and his wife have a five year old daughter. Evidence of his family composition is before the Tribunal. The visa applicant is the one member of his family who is in a position to travel to see the review applicant and his family and to see something of Australia. He plans to stay for a few weeks during the Australian summer when the review applicant can take some leave from work and take him around, perhaps to Queensland for a holiday. He will otherwise stay with the review applicant and his wife and children in Sunshine.

18. The Tribunal questioned the review applicant about the visa applicant’s circumstances in Vietnam. He told Tribunal that the visa applicant lives with his wife and owns his house. He works for a construction company, and he also runs a business in the nature of a coffee shop and karaoke bar. He has a bank balance of about three hundred million Vietnamese dong (the equivalent of about AUS$15,000.00).

19. A copy of the visa applicant’s Term Saving Book with his Credit Fund is contained on the Departmental file (f.88) which confirms his savings. Also contained on the Departmental file is a copy of his Certificate of Business Registration for his Café, Karaoke and Drinking Service (26 October 2015); a Certificate of Land Use Right in Hamlet 7, Nam Kim Commune, Nam Kim district of Nghe An Province; evidence of his employment as a team leader, and a leave agreement, from his employer HCOGI Construction and Investment JSC (13 November 2015); and a number of identity documents including his Birth Certificate, ‘Curriculum Vitae’ and Identity Card.

20. The Tribunal questioned the review applicant about his own immigration history, noting that Departmental records before Tribunal indicate that he arrived in Australia as the holder of a visitor visa in 2008 and did not depart Australia in accordance with his visa conditions, but remained in Australia and applied for a partner visa in 2011. The review applicant agreed that this was the case. He described his circumstances at the time as including the breakdown and dissolution of his first marriage and his associated depression and lack of purpose. He told the Tribunal that he had met up with a group of people from his home province in Vietnam and just overstayed without thought for the consequences. He acknowledged that he should not have done so, but observed that the mistake that he made was almost ten years ago, and he has now been happily married for several years and is employed and has two children in Australia.

21. The review applicant presented to the Tribunal as credible.

22. The Tribunal heard evidence from the visa applicant by telephone. His evidence regarding his circumstances in Vietnam and the purpose of his proposed visit to Australia was detailed and consistent with that of the review applicant. He described his employment, his business and his family commitments in detail, telling the Tribunal he cannot leave his elderly parents for long, and he also has work commitments in Vietnam which will necessarily restrict any visit to Australia to three or four weeks. He also told the Tribunal that his younger son who is studying is Korea may wish to pursue post-graduate studies in Australia and the visa applicant would like to take the opportunity of looking at possible study options for his son when he visits Australia.

23. Both the review applicant and the visa applicant acknowledged that they understood that the ability of the visa applicant’s son, or any other members of their family, to visit Australia in the future could be adversely affected by any breach of the conditions of any visa granted to the visa applicant. The review applicant assured the Tribunal that the parties would not wish to jeopardise the family’s ability to sponsor overseas relatives to visit Australia in the future, which is something he hopes to be able to do. The Tribunal finds the review applicant’s submissions in this regard to be persuasive.

24. The parties have provided detailed evidence that the visa applicant will certainly return to Vietnam within the visa period. They have provided detailed submissions and consistent oral evidence regarding the purpose, timing and duration of the proposed travel of the visa applicant. They have also provided supporting documentary material regarding the visa applicant’s business and assets in Vietnam which is set out above. The Tribunal accepts the evidence provided that the visa applicant is financially comfortable and able to support himself during his proposed visit to Australia. The visa applicant will be accommodated during that period by the review applicant in his home, and they may also travel on holiday together. The Tribunal accepts that the review applicant is settled in Australia with his family and is readily able to accommodate and support the visa applicant during any visit to Australia. The Tribunal finds their evidence to be plausible. The proposed duration of the visit is for up to three months, which is consistent with the expressed purpose of the visit.

25. Having considered all of the evidence before it the Tribunal considers the factors indicative that the visa applicant will return to Vietnam in accordance with his visa conditions outweigh any factors which suggest he may seek to remain in Australia beyond the visa period. Therefore, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visitor visa is granted. Based on the evidence before it considered as a whole the Tribunal is satisfied that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject: c1.600.211(b).

26. The Tribunal has considered each of the factors contained in cl.600.211 and 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

27. 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.

    Mary Cameron
    Member