1725712 (Migration)

[2019] AATA 1127

1725712 (Migration) [2019] AATA 1127 (10 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1725712

MEMBER:Margie Bourke

DATE:10 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for 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 10 January 2019 at 1:43pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – plan to support applicant’s sister during childbirth – incentives to return to Vietnam after visit – review applicant previously sponsored compliant visits by family – decision under review remitted         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.211, 600.231, 600.612

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 of the Migration Act 1958 and replaced with generic information.

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 October 2017 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 1 September 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different 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 the visa applicant genuinely intended to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 7 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence via telephone, and from a friend of the review applicant, who attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.  In the application form the visa applicant had stated she wished to support her sister, who was due to give birth [in] December 2017.  In the hearing both the review applicant and the visa applicant stated the visa applicant wished to visit her sister (the review applicant) and her son (the nephew of the visa applicant), and also to provide support and advise to her sister.

9. 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)).

10. The evidence before the tribunal is that the visa applicant has not travelled overseas, and has therefore never been the holder of a visa.  There is no evidence of the visa applicant ever being subject to visa conditions previously.  There is therefore no evidence of any non-compliance with visa conditions by the visa applicant.

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 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.

12. The delegate found that the visa applicant had a husband and two children and a business in Vietnam.  I am also satisfied the visa applicant has a family, and a sewing business she conducts from home. I accept the visa applicant’s husband is employed and her children attend school.  I accept the visa applicant resides with her father, and her sister, and her child.   I accept that these factors are all incentives for the visa applicant to wish to return to Vietnam after visiting her sister in Australia.

13. I accept the visa applicant’s and the review applicant’s mother is deceased. I accept the evidence that the review applicant is a single mother, and required some support with her first child from her family. I am satisfied that this was the incentive for the visa applicant to leave her family, and visit her sister in Australia.  I am satisfied based on the evidence before me that the visa applicant does not intend to work or study or train in Australia, and intends to return to her family in Vietnam before the expiration of the visa.

14. I am satisfied based on the evidence of the review applicant’s friend that the review applicant was overwhelmed by her pregnancy and birth of her son. I am satisfied that friends of the review applicant provided what support they could outside of their own employment and family commitments. I am satisfied the review applicant applied for extended maternity leave. I accept the review applicant wishes to return to work part time, and try to settle her son in part time child care, and hopes to have her sister’s support in changing her current arrangements.

15. I accept the visa applicant genuinely intends to visit her sister the review applicant, and provide her with sisterly support with care for her child.  I am satisfied based on all the evidence before me that the visa applicant genuinely intends to comply with all conditions of her visa.

16. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The review applicant has successfully applied to sponsor other members of her family to come and visit her.  The review applicant sponsored her younger sisters to visit her, and they came to Australia in 2008 and 2009, respectively. The review applicant’s father has visited her on a tourist visa in 2013, 2016 and is currently in Australia on a visitor’s visa. The delegate in the Department decision record stated that the prevailing economic conditions in Vietnam, and the visa applicant’s family links in Australia may prove a strong disincentive for the visa applicant to return to Vietnam. I find this incongruous, given the visa applicant has a husband and school age children in Vietnam, and the Department has not applied the same reasoning to consideration of applications for visitor visa applications by other members of the same family.  It is relevant that the review applicant has successfully applied to sponsor other members of her family to visit her, and that the evidence is that those other family members have complied with the conditions of their visas. I accept the review applicant understands that family members must comply with conditions of their visas, or it may affect the success of future applications for visas.

17. 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 I finds that the visa applicant meets the requirements of cl.600.211.

    DECISION

18. The Tribunal remits the application for 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.

    Margie Bourke
    Member