2309810 (Migration)

[2024] AATA 4290

2309810 (Migration) [2024] AATA 4290 (21 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2309810

MEMBER:Member Nathan Goetz

DATE:21 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision dated 12 May 2023 refusing to grant the visa applicant a Visitor (class FA) Visitor (Sponsored Family) (subclass 600) visa.

DIRECTION: The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) in relation to this review that information that would identify any person is not published by the Tribunal.

The Tribunal is satisfied it is in the public interest that this material is not published because it would unreasonably reveal information about a previous protection visa application (noting a number of provisions in the Migration Act 1958 (Cth) restrict publishing material that identifies protection visa applicants, e.g. ss 91X, 431 and 501K).

Statement made on 21 August 2024 at 1:46pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit family members – all the siblings were not detailed in the visa application form – siblings travelled to Australia and remained in Australia in breach of visa conditions – applicant has a flexible approach to the truth – Tribunal is not satisfised visa applicant genuinely intends to stay temporarily in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister who refused to grant the visa applicant a Visitor (class FA) Visitor (Sponsored Family) (subclass 600) visa.

   BACKGROUND

2. On 1 May 2023 the visa applicant applied for the visa. 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 (Cth) (the Regulations).

4. On 12 May 2023 the delegate refused to grant the visa applicant the visitor visa. The delegate was not satisfied that the visa applicant met cl 600.211 of Schedule 2 to the Regulations. This provides the following:

   600.211 

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  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; and

   (b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c)  any other relevant matter.

5. The delegate decision record does not identify the conditions that would be imposed on the visitor visa if granted. As this visa is in the sponsored family stream, cl 600.612 is applicable. It requires that the following visa conditions be put onto the visitor visa if granted:

   8101: The holder must not engage in work in Australia.

   8201: While in Australia, the holder must not engage, for more than 3   months, in any studies or training.

   8503: The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

   8531: The holder must not remain in Australia after the end of the period of stay permitted by the visa.

6. On 4 July 2023 the review applicant applied to the Tribunal for review of the decision.

7. On 2 August 2024 the Tribunal wrote to the review applicant for two reasons.

8. The first reason was to invite the review applicant to appear at a Tribunal hearing scheduled for 9:30am on 21 August 2024 so she could give evidence and present arguments relating to the issues arising in elation to the decision under review: s 360(1) of the Act. Included with the hearing invitation was a ‘response to hearing invitation form’ that indicated the Tribunal wished to obtain oral evidence from the visa applicant. The Tribunal determined that a Tribunal hearing occurring via MS Teams was appropriate in all the circumstances of the review.

9. The second reason was to invite the review applicant to provide the Tribunal with information under s 359(2) of the Act. The information requested, and provided in response to the request, is detailed later in this decision record.

10. On 21 August 2024 the review applicant and the visa applicant appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this review is whether the visa applicant satisfies cl 600.211 of Schedule 2 to the Regulations.

12. If the Tribunal finds that the visa applicant satisfies cl 600.211 of Schedule 2 to the Regulations, the correct or preferable decision is to set aside the decision refusing to grant the visa and remit the visa application back to the delegate for reconsideration with a direction that the visa applicant satisfies cl 600.211 of Schedule 2 to the Regulations.

13. If the Tribunal finds that the visa applicant does not satisfy cl 600.211 of Schedule 2 to the Regulations, the correct or preferable decision is to affirm the decision under review.

14. The Tribunal considered all the evidence provided in support of the visa application and the review application, including the oral evidence provided at the Tribunal hearing.

15. In the visa application form, the visa applicant identified that she was born on [date] in [Phu] Vang, Thua Thien Hue, Vietnam and that she is a female citizen of that country where she is located. She identified her relationship status as ‘never married.’

16. At the Tribunal hearing, the visa applicant told the Tribunal that although she is not married, she has been in a relationship with a male citizen of Vietnam who lives in that country for the last four years. She described the relationship as good and told the Tribunal that she had never been the victim of domestic violence.

17. In the visa application form, the visa applicant identified that she wished to arrive in Australia on 15 June 2023 and depart Australia on 14 September 2023. The purpose of her trip to Australia was to visit three brothers and a sister and their families in Australia.

18. At the Tribunal hearing, noting that this period had passed, the visa applicant told the Tribunal that she had applied for leave from her employer and planned to be in Australia between 20 September 2024 and 20 November 2024. The Tribunal was provided with a copy of this leave certificate.

19. In the visa application form, the visa applicant identified that she worked at [a] Company and had worked there from 2 October 2019. At the Tribunal hearing, she confirmed that she remained employed with that business and she detailed that her work related [details deleted].

20. In the visa application form, the visa applicant identified that she had the following family in Australia:

    ·     Mr [name], who is identified as the visa applicant’s brother and a citizen of Australia who was born on [date]. He is the sponsor for the visa and the review applicant. Department records show that the review applicant arrived in Australia holding a refugee category visa and he subsequently became an Australian citizen.

    ·     Mr [A], who is identified as the visa applicant’s brother and a citizen of Australia who was born on [date]. Department records show that this brother arrived in Australia holding a refugee category visa and he subsequently became an Australian citizen.

    ·     Ms [B], who is identified as the visa applicant’s sister and a citizen of Australia who was born on [date]. Department records show that this sister arrived in Australia holding a provisional partner visa and was subsequently granted a migrant partner visa. She currently holds a resident return visa.

    ·     Mr [C], who is identified as the visa applicant’s brother and a citizen of Australia who was born on [date]. Department records show that this brother initially came to Australia holding a provisional partner visa and was subsequently granted a migrant partner visa. He currently holds a resident return visa.

21. In the visa application form, the visa applicant identified the following ‘non-accompanying members of the family unit’ not travelling with her to Australia:

    ·     Mr [D], who is identified as the visa applicant’s father who was born on [date] in Vietnam. Department records show that the visa applicant’s father travelled to Australia twice previously on visitor visas and departed in accordance with visa requirements.

    ·     Ms [E], who is identified as the visa applicant’s mother who was born on [date] in Vietnam. Department records show that the visa applicant’s mother travelled to Australia twice previously on visitor visas and departed in accordance with visa requirements.

22. Based on the information provided in the visa application form, it appeared that the visa applicant was one of five children and that all her siblings were located in Australia because she did not identify any family members (other than her parents) who located outside Australia.

23. On 2 August 2024 the Tribunal wrote to the review applicant under s 359(2) of the Act and requested information about the name, date of birth, citizenship and country of current residence of any father, mother, brother, sister, spouse or child of the review applicant and the visa applicant.

24. On 16 August 2024 the Tribunal was provided a document titled ‘[family]’ which demonstrated that the visa applicant was not one of five children, but one of nine children. The Tribunal asked the visa applicant why the siblings outside of Australia were not declared in the visa application form and asked whether this was done deliberately to hide their identity. The visa applicant said that this was not the case and that the reason the other siblings were not identified was due to the fact that they ‘had their own lives and families’ and were not ‘members of the visa applicant’s family unit.’ The Tribunal was told that the parents were included in the visa applicant’s family unit’ because she was not married and did not have a family of her own.

25. According to the chart, the previously undisclosed siblings are as follows:

    ·     Ms [name], who is identified as the visa applicant’s sister born on [date] and is a citizen of [a country] where she currently resides. There are no Department records for this sister.

    ·     Ms [F], who is identified as the visa applicant’s sister born on [date] and is a citizen of Vietnam where she currently lives. Department records show that this sister came to Australia on[date] November 2007 holding a tourist visa that was valid until [date] February 2008 but she did not depart, and became an unlawful non-citizen in Australia. On 18 October 2019 she applied for a protection visa in Australia and she was granted a bridging visa to regularise her migration status in Australia. On 21 May 2020 a delegate refused to grant her the visa and she applied to the Tribunal for review of the decision: AAT 2009121. On [date] May 2024 this sister departed Australia.

    ·     Mr [G], who is identified as the visa applicant’s brother born on [date] and is a citizen of Vietnam where he currently lives. Department records show that this brother came to Australia on [date] November 2007 holding a tourist visa that was valid until [date] February 2008 but he did not depart, and became an unlawful non-citizen in Australia before finally departing on [date] November 2011.

    ·     Ms [name], who is identified as the visa applicant’s sister born on [date] and is a citizen of Vietnam where she is currently located. There are no Department records for this sister.

26. At the Tribunal hearing, the review applicant told the Tribunal that he had sponsored his brother Mr [G] to visit Australia but this brother had not left. The Tribunal was told that this brother did not have a job in Vietnam and worked while he was in Australia and had subsequently returned to Vietnam. The review applicant did not identify that he had previously sponsored this brother who had not complied with the conditions of the visa in the completed Form 1149 – Application for sponsorship for sponsored family visitors. The Tribunal asked the review applicant how it could have confidence in his assertion that the visa applicant was a genuine temporary entrant to Australia when, by his own assertion, he had previously sponsored someone who came to Australia and remained in Australia in breach of their visa conditions. The review applicant said that he told his brother to comply with the visa conditions and was sure the visa applicant would comply with her visa conditions and depart Australia.

27. At the Tribunal hearing, the Tribunal asked the review applicant to tell the Tribunal about his sister Ms [F]. The Tribunal observes that this sister was present in Australia at the time the visa application was lodged on 1 May 2023, but no declaration was made that she was a contact in Australia. The Tribunal was told that she was in Australia but was sponsored for a visit by another sibling, so he did not know much.

28. According to the protection visa application made by this sibling, Ms [F] belongs to the Kinh ethnic group and is a Catholic. She was raising her own claims for protection. She claimed that she left Vietnam because:

29. “Since I was still a very young and a student in Vietnam school, I was very active to learn for skills, but also aware that our country running the Communist Laws, as a student we do not have much rights to raise any opinion about changing or promote for any Democratic nor Human Rights at all, as its against the current system politically. We have a group of young students together who agree to fight peace fully for our Freedom of speeches, greater Democratic as No Democratic at all, also Human Rights in Local and also the whole country.

30. Many occasions been hit by the School management, and they informed my Parents for

    stopping the actions. Then I fight also the Local Authorities, not give up the rights, but have no rights, they been threaten our parents and financially distortion, this is how they live. Since I work for self-Labour contract for livings, also effected by the Local Authorities as my family often opposing their policies and demand for changes.

31. Family become scary, and mental issues come up. I see no hope in the Communist Country, then seeking abroad for Travel, Studying skills, also learning the Freedom of speech, Human Rights and Democratic of the Western country, such as Australia. This is how our political system should follow and copy the Democratic / Human running for our political system.”

32. This sister was asked whether she had experienced harm in Vietnam and she indicated that she had:

33. “As discussed above clause, family been threaten not opposed the Government policies, otherwise would be jailed, and they are No joke on political issues, as many other citizens been jails already, just for fighting on face Book above issues. Been expelled to class and banned not to enter class room many occasions, as spread out further Anti-State Government policies, this is serious problem involved.”

34. Concerning her claim about future harm in Vietnam, this sister wrote:

35. “Surely mistreated, as mentioned above issues. Family back there the main target for the Local Authority to get around daily and causing problem. Either threaten nor financially demand corrupted.”

36. This sister was also asked questions about why she was unable to relocate within Vietnam. She indicated the following:

37. “As same mentioned above clause issues, there's No place relocate around the Communist country, as same laws imposed uniformly.

38. No financial supports,.

39. No accommodations.

40. Other thing as the family religious of Catholic, and often opposing their policies, the Communist Authorities have an eye on Religion and controlled indirectly, Not Freedom of Religious at all.”

41. The visa applicant had made various declarations in the visa application form indicating her understanding that she would not be permitted to work on the visitor visa, indicated her agreement to leave Australia on or before the visitor visa expired, understood the effect of Condition 8503, and understood that study and training limitations would be imposed on the visa. The visa applicant also declared in the visa application form that she did not intend to study or train while in Australia. She also acknowledged that she had previously applied for visas to come to Australia and that the visas had been refused.

42. At the Tribunal hearing, the visa applicant told the Tribunal she was a Buddhist specifically denying she was a Catholic. She told the Tribunal that she did not engage in political activity in Vietnam and had never been harmed or threatened with harm in Vietnam.  She said that it was not her intention to lodge a visa application once in Australia and was not coming to Australia to work. She told the Tribunal she was not using the visitor visa as a means to escape Vietnam and never return.

43. The Tribunal raised with the review applicant the fact that the visa applicant claimed that she had never been threatened with harm in Vietnam, which appeared to be inconsistent with the family being threatened in Vietnam as claimed in Ms [F]’s protection visa application.  The review applicant said he did not know what his sister said in the visa application.

44. The Tribunal noted to the review applicant that he had two siblings who came to Australia on tourist visas and they overstayed them, which may suggest that the visa applicant was likely to do the same. The Tribunal also noted that the failure to declare all the siblings may suggest that there was a level of dishonesty in this visa application which may impact the weight the Tribunal gave to the assertions that the visa applicant would come to Australia temporarily and then return to Vietnam. The Tribunal was told that the visa applicant’s intention coming to Australia for a visit was genuine, with the visa applicant saying that she wanted to particularly visit the review applicant’s daughter and teach her how to cook.

45. The review applicant’s daughter provided a written statement and gave oral evidence at the Tribunal hearing. It was consistent with a desire for the visa applicant to come to Australia and see family. The visa applicant also noted previous travel to [other countries] and indicated she had complied with the visa conditions that attached to those visas. She claimed in a letter to the Tribunal that the conditions in those countries was a higher standard of living than Vietnam and she chose to return to Vietnam. She also detailed that that her employment, property holdings and savings in Vietnam would act as an incentive for her to return to Vietnam at the end of her visit to Australia and that the review applicant would meet her living expenses during her time in Australia.

    FINDINGS AND REASONS

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

47. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is issued, the decision-maker must consider whether the visa applicant has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

48. The visa applicant has not previously travelled to Australia. Therefore, she has no demonstrated Australian migration history which can be used to show or not show that the visa applicant genuinely intends to stay temporarily in Australia.

1. Therefore, this consideration is irrelevant.

2. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is issued, the decision-maker must consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)).

3. The visa applicant gave oral evidence consistent with the declarations made in the visa application form, namely that she understood the visa conditions that would attach to the visa if granted, and she agreed to abide by then.

4. However, the Tribunal needs to consider whether it can place any weight on those assertions. The Tribunal has considered those assertions under other relevant considerations.

   In considering whether a visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is issued, the decision-maker must consider all other relevant matters (cl 600.211(c)).

5. The Tribunal accepts that the visa applicant has previously travelled to [other countries] and there is no evidence that she failed to comply with those conditions. The Tribunal also accepts that the visa applicant is employed in Vietnam, has property ties and savings in that country. The Tribunal accepts that the review applicant’s daughter genuinely wishes to see her aunty in Australia. The Tribunal accepts a longstanding relationship for the visa applicant in Vietnam would act as an incentive for her to return to Vietnam at the end of the trip to Australia.

6. However, the Tribunal did not find either the visa applicant nor the review applicant persuasive witnesses about the fact that the all the siblings were not detailed in the visa application form. The Tribunal does not accept that the siblings who were not in Australia were not included because the visa applicant is, in effect, independent of them. If that rationale was correct, the visa applicant would not have included the details of her parents, because it can not be argued that she is not independent of her parents. The Tribunal’s assessment is that the siblings were not disclosed in the visa application form because the visa applicant formed a view that hiding these identities would benefit her being granted a visa.

7. Further, the visa applicant did not identify that her sister Ms [F] was in Australia in the visa application form, despite the records showing that at the time the visa application was lodged, this sister remained in Australia waiting for her protection visa review. The fact that this sister’s protection visa claims suggests that her family was threatened (which the visa applicant denies), leads the Tribunal to be unable to work out where the truth lies. In combination with the fact that another sibling, Mr [G] also travelled to Australia on a visitor visa and remained in Australia in Australia in breach of visa conditions, the Tribunal has a great deal of unease accepting the visa applicant’s assertions that the will comply with visa conditions.

8. The Tribunal accepts that the visa applicant’s parents have come to Australia and complied with conditions. However, the fact remains that of the visa applicant’s two siblings who came to Australia on visitor/tourist visas, they did not comply with their visa conditions and remained in Australia for periods of unlawfulness. The Tribunal is not satisfied, in light of what the Tribunal considers the withholding of identity of siblings in the visa application form, that the visa applicant has a flexible approach to the truth and is prepared to withhold evidence that may not be favourable to her. The Tribunal’s assessment is that it cannot give any weight to the visa applicant’s claims that she will comply with visa conditions, or that she was coming to Australia for a temporary purpose.

   CONCLUSION

9. 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

10. The Tribunal affirms the decision dated 12 May 2023 refusing to grant the visa applicant a Visitor (class FA) Visitor (Sponsored Family) (subclass 600) visa.

    Nathan Goetz

    
    

    Member