1605604 (Migration)

[2016] AATA 4336

1605604 (Migration) [2016] AATA 4336 (1 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr David John Winter

VISA APPLICANT:  Miss Chutimaporn Satun

CASE NUMBER:  1605604

DIBP REFERENCE(S):  BCC2016/565631

MEMBER:Tony Caravella

DATE:1 September 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 01 September 2016 at 4:39pm

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 7 March 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 applied for the visa on 1 February 2016. 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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  The delegate also made the following comment in the decision record:

   “For the sponsorship requirements to be satisfied, it is critical that an eligible relationship between the applicant and sponsor be clearly established.  I acknowledge the statements, photos and phone records supplied in support of the de facto relationship.  However, I find the evidence provided was insufficient to establish the de facto relationship between applicant and sponsor, as defined by the regulations.

   This is not the reason for the decision, but is noted for the applicant’s consideration.  While the sponsorship requirement was not satisfied, in the interest of client service the assessment continued.”

5. The review applicant appeared before the Tribunal on 1 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who spoke to the Tribunal by telephone from Thailand.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent, however, his agent did not attend the hearing.

7. The review applicant began his evidence by telling the Tribunal that he had applied on an earlier occasion for a visitor visa for the visa applicant but that application was also refused.  He said the first application was lodged at the Embassy in Thailand.  He said he understood that application was refused because he and the visa applicant had not known each other for long enough.  He said he did not apply for a review of that decision, as he did not know the process at that time.

8. The review applicant said he met the visa applicant in December 2014.  He said they talk to each other, or text each other, every day, and they communicate in this manner at morning and at night.  He said they plan to marry in Thailand because that is where the visa applicant has all of her family.  He said that in the meantime he wants the visa applicant to visit him in Perth to see if she likes it here.  He said that if she does not like it here then he might pack up and move to Thailand, however, he is concerned at the cost of health insurance for himself in Thailand. 

9. The review applicant told the Tribunal that the visa applicant has two children in Thailand from her previous relationship.  The visa applicant does not live with the children. The children are a daughter and a son, aged 8 and 15 years of age respectively.  The daughter lives with her ex-partner’s parents, and the son lives with the visa applicant’s sister.  They are not included in the visa application, and it is not proposed to include them in a Partner visa application which they propose to make in due course after they are married.  

10. The Tribunal referred the review applicant to the delegate’s expressed concern regarding the evidence as to the existence of the claimed de facto relationship. It explained that the delegate had not refused the visitor visa on this basis, but clearly signalled some concern about the evidence that had been provided to prove the relationship. The review applicant said he had provided various documents, including evidence of his regular trips to Thailand, hotel receipts for hotels where he had stayed with the visa applicant, photographs, and evidence of money transfers. He said in respect to providing money for the visa applicant, he tends to give her cash when he is there because in that way he saves on money exchange fees. The Tribunal advised the applicant that as the delegate did not decide to refuse the visitor visa on the basis of the evidence of the relationship, it would focus its review on the issue in dispute, that is, whether the applicant meets the requirements prescribed in cl.600.211 of Schedule 2 to the Regulations. It also suggested that if he has further documentary evidence of his relationship with the visa applicant, he should provide that to the Department to satisfy it on the question of its nature and genuineness.

11. The review applicant told the Tribunal that he and the visa applicant love each other and want to live together.  He said he divorced his last wife several years ago.  He said that marriage had lasted 38 years.  His ex-wife was also Thai.  He said they had two sons and one adopted daughter in that marriage.  He said his children are supportive of his relationship with the visa applicant.  He said they encourage him in relation to the relationship because, amongst other things, they do not want to see him living alone in the large house in which he lives. 

12. The review applicant told the Tribunal that he retired about 12 years ago.  He retired from the position as manager of Riverton Engineering. 

13. As far as the proposed visit is concerned, the review applicant told the Tribunal that his plan is, that is if the visa is granted, he will buy a three-month return ticket for the visa applicant.  He said after the visa applicant visits him in Australia, he would go back with her to Vietnam.  He said his 70^th birthday falls on 18 December 2016 and he plans to go back to Bangkok with the visa applicant for that. 

14. The Tribunal discussed the relevant applicable visa conditions with the review applicant.  He undertook that the visa applicant would not work or study in Australia, and that she would depart before the expiry of the visa.  He said the visa applicant understands that she would need to leave Australia before the expiry of the visa.  He said they want to do this the right way.  He said they do not want to jeopardise the longer-term prospect of getting a partner visa after they marry. 

15. The review applicant told the Tribunal that he has not sponsored anyone else for a visa for Australia in recent times. 

16. The review applicant told the Tribunal that the visa applicant is not currently employed in Thailand.  He said he transfers money to her but also pays her cash when he travels to Thailand.  He said that she lives with her mother in Thailand. 

17. The Tribunal spoke to the visa applicant by telephone.  She told the Tribunal that it is her intention to visit to see how the review applicant lives here.  She said she would like to stay for 3 months.  She said she understands the visitor visa is a separate visa to a partner visa and that she would have to leave Australia within 3 months.  She said that after she has been to Australia and if all goes well they will then marry.  She said that even if she does not like Australia she envisages their partner relationship will continue and they will live together in Thailand. 

18. The visa applicant confirmed that hitherto she has never travelled outside of Thailand.  Accordingly, she has never held a visa. 

19. The visa applicant told the Tribunal that recently she began selling food at a local market in Khon Kaen.  She also told the Tribunal that they met when the review applicant was holidaying in Hua Hin, Thailand.     She concluded her evidence by saying she promises that she will comply with all the visa conditions.

20. The review applicant closed his evidence by explaining that he and the visa applicant speak English to each other.  He said he also understands Thai.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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.

23. In the present case, the visa applicant states that she seeks the visa for the purposes to “visit to understand and see how my de facto lives so we can decide on where we will live (Thailand or Australia).  Also, celebrate my birthday with him as he celebrated his with me.”  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

24. 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 Tribunal accepts the sworn evidence of the review and visa applicants where they have claimed the visa applicant has hitherto not travelled beyond the borders of Thailand.  She therefore has not held an Australian visa and therefore is unable to demonstrate compliance, or non-compliance, with such a visa. 

25. 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

    ·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.

26. The Tribunal found the review applicant and the visa applicant to be consistent and credible witnesses.  The Tribunal found the review applicant and the visa applicant gave consistent evidence as to the purpose for the proposed visit.  That is, the purpose is so the visa applicant can observe the review applicant’s life and lifestyle here, and the circumstances generally, and thereby determine whether she might be happy to seek a longer term residency arrangement in Australia.  In these circumstances, and having regard to the sworn promises of the two witnesses, the Tribunal is satisfied that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject.  The Tribunal places some weight in this respect on the review applicant’s statement that he and the visa applicant would not want to undermine their prospects for a partner visa by any non-compliance with the terms and conditions of the visitor visa which they seek.  

27. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In considering this criteria, the Tribunal had regard to the Department’s policy guidance set out in the Procedures Advice Manual (PAM3) which relevantly states:

    The ‘any other matter’ factor

    Some relevant considerations

    In establishing whether 600.211(c) is satisfied, relevant considerations of any other matter may include, but are not limited to:

    ·Personal circumstances

    ·Credibility

    ·Purpose and period of stay

    ·Previous immigration/travel history

    ·Intel reports and profile.

    Personal circumstances

    Namely:

    ·the personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:

    oongoing employment

    othe presence of close family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia

    oproperty, or other significant assets, owned in their home country and

    owhether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance

    and

    ·the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:

    oeconomic circumstances – including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia

    oeconomic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country.

    othe applicant’s personal ties to Australia, that is:

    §does the applicant have more close family members living in Australia than in their home country

    §is the applicant subject of adoption proceedings that have not been resolved in their home country

    omilitary service commitments

    ocivil disruption, including war, lawlessness or political upheaval in the applicant’s home country.

    Note: If refusing a visitor visa in relation to the genuine temporary stay criterion, s65 delegates must take care not to confuse the applicant’s financial circumstances as an incentive to return and the applicant’s access to ‘adequate means of support’. They are separate factors and so must be considered separately.

    Credibility

    The applicant’s credibility in terms of character and conduct (for example, false and misleading information provided with visa application).

    Purpose and period of stay

    Whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with “tourism”).

    Previous immigration/travel history

    Previous immigration and travel history, such as: 

    ·previous visa applications for Australia

    ·previous overseas travel, that is, has the applicant travelled to countries other than Australia.

    In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.

28. The Tribunal considered all the evidence before it, including the various documents which are held on the Department’s file (BCC 2016/565631).  These include a statement written by the review applicant where he refers to his strong feelings for, and attachment to, the visa applicant.  It also refers to his financial circumstances and to his capacity to support the visa applicant in Thailand, and his commitment to support her while she visits Australia.  The Tribunal considered the translated letters from the visa applicant’s mother and from her sister.  These both express their view that the relationship between the visa and review applicants is a genuine one.  There are also other letters from different sources and which attest to the perceived genuineness of the relationship.  The Tribunal has also considered the telephone records which are included in the Department’s file and which indicate regular contact between the parties.  Finally, it has considered the movement records for the review applicant which show that he has travelled to Thailand on many occasions, and in particular, travelled there on some 8 occasions since he claims he met the visa applicant in Thailand in December 2014.  Having regard to all this evidence, and to the sworn oral evidence of the respective applicants given to the Tribunal, the Tribunal formed a view that the claimed defacto relationship appears to be a genuine one.  It appears that the parties intend to proceed to marry and to subsequently submit a partner visa application.  A future partner visa application would be subject to the visa applicant being satisfied with the relevant conditions in Australia and ultimately being satisfied with moving to Australia after visiting here.  However, the question of the visa applicant’s long term residency in Australia, at this stage is no more than a likely option, but not a certainty.  The correct and appropriate question in the current review therefore is whether the applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa, that is the one that is the subject of this review, is granted.  The Tribunal considered all the relevant factors, and in particular, the applicant’s ties to her family in Thailand, and to her sworn oral evidence that she has no fear of returning to Thailand.  Having considered all the circumstances, undertakings and evidence, the Tribunal concludes that the visa applicant’s intention in respect of this visa application is to only visit Australia for a period of three months, to comply with applicable visa conditions, and then return to Thailand.                

29. 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

30. 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.

    Tony Caravella
    Member