1613710 (Migration)

[2016] AATA 4832

1613710 (Migration) [2016] AATA 4832 (27 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Thuy Linh Do

VISA APPLICANT:  Ms Thi Nhanh Vo

CASE NUMBER:  1613710

DIBP REFERENCE(S):  BBC2016/2039145

MEMBER:Di Hubble

DATE:27 December 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 27 December 2016 at 6:16pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – Providing family assistance with newborn child – Evidence of personal ties to Vietnam – Australian relatives managing a business – Visa applicant’s home mortgage – Dependent students

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2, cl 600.211

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 2 July 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 9 June 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 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 the delegate was not satisfied that she intends to visit Australia temporarily.  Specifically, the delegate placed weight on the following:

   ·The visa applicant requested a 12 month stay to assist her niece with the birth of her child in August 2016.  However, the sponsor has her own family onshore, including her mother and siblings to provide support and assistance and, as such, there is no compelling need for the visa applicant to visit Australia for 12 months to provide assistance.  The reason for travel was also inconsistent with the length of stay requested;

   ·The visa applicant had not provided evidence of sufficient personal, financial, employment and cultural ties to Vietnam to demonstrate that she intends a genuine visit to Australia.

5. In her submission to the Tribunal, the review applicant, who is the visa applicant’s niece, claimed that:

   ·She is a single mother with 2 sons aged 21 and 15 from a previous relationship who, respectively, attend university and high school;

   ·Her mother lives with her younger brother, his wife and their 2 children aged 4 and 1.  Her brother and his wife manage their own business and on a daily basis her mother helps, supports and assists her younger brother, his wife and their children.  Her mother, therefore, can only sometimes assist her;

   ·Her younger sister, Trang, works full-time at Dandenong Magistrates Drug Court and her youngest sister, Kim, has finished her studies and was seeking full-time employment.  However, she has had to put her career on hold in order to help at her nail salon;

   ·It was hoped that her aunt could support and help her before and after her baby’s birth; however this was not the case.  She gave birth to a baby boy on 24 July 2016.  The whereabouts of the child’s father, her ex-partner, are unknown;

   ·They requested a stay of up to 12 months but acknowledged that the Department may only grant 3 or 6 months.  She only needs her aunt’s help for the first 6 to 12 months because she needs to go back to work managing her nail salon as she currently has no staff (other than her sister) working for her;

   ·They provided the Department with her aunt’s bank statement, which shows that she has approximately $20,000 AUD in the bank.  Her aunt owns her home (subject to a mortgage) and she has children and grandchildren in Vietnam.  Therefore, she must return there;

   ·They intend, as a family, to take her aunt sightseeing when they (the family) are not working, especially on a Sunday or on public holidays;

   ·She is still currently at home with her newborn (as of September 2016) and she is receiving no wages from her business, which is slow during autumn and winter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 (cl.600.211(a)); whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)); and any other relevant matter (cl.600.211(c)).  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.

7. The visa applicant seeks the visa for the purpose of a family visit and, specifically, to help care for the review applicant’s infant son.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.  Although the delegate was concerned about the visa applicant’s proposed length of stay, the Tribunal considers that the visa applicant’s proposed length of stay is consistent with the stated purpose of her visit.  

8. As the visa applicant has never previously held an Australian visa, cl.600.211(a) is not relevant.

9. In assessing cl.600.211(b) and (c), the Tribunal accepts that the presence of the visa applicant’s sister, a nephew and 3 nieces in Australia would provide her with some incentive to remain here.  However, the Tribunal considers there are other factors that will increase her incentive to return to Vietnam in a timely fashion after visiting Australia, including the fact that the visa applicant:

   • Is a 56 year old divorced woman who lives with her 2 adult daughters, her adult son and a 10 year old grandson, all of whom will remain in Vietnam during her proposed stay in Australia.  In addition, the visa applicant’s elderly mother and 3 sisters all live in Vietnam; 
   • Owns her apartment in Vietnam and has the equivalent of approximately $18,000 AUD in the bank;

   ·Is a resident of Vietnam, the nationals of which, according to the Department’s 30 June 2013 non-return rate quarterly report, had a visitor visa overstay rate of only 1.44%.  When this is viewed in light of the visa applicant’s individual circumstances (ie. an older divorced woman whose 3 adult children, 10 year old grandchild and extended family reside there) the Tribunal is satisfied that the visa applicant will abide by her visa conditions.

10. Having considered all the evidence before it, the Tribunal is satisfied that the visa applicant has strong family and community ties to encourage her return to Vietnam at the end of the visa period.  The Tribunal accepts that she has a secure and comfortable home environment to return to. 

11. 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

12. 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.

    Di Hubble
    Member