An (Migration)

[2021] AATA 1901

An (Migration) [2021] AATA 1901 (20 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mrs Maratana An
Mr Borom Vorn

VISA APPLICANTS:  Mrs Marina An
Mr Chanthys Prem

CASE NUMBER:  1836091

HOME AFFAIRS REFERENCE(S):          BCC2018/4712613

MEMBER:Moira Brophy

DATE:20 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

The Tribunal affirms the decision not to grant the second named visa applicant a Visitor (Class FA) visas.

Statement made on 20 May 2021 at 12:13pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visiting family – immigration history – intention to comply with visa conditions – reason for visit – incentives to return to home country – married couple not permitted to travel to Australia together – decision under review remitted for first named applicant – decision under review affirmed for second named applicant

LEGISLATION
Migration Act 1958 (Cth), ss 65

Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 Home Affairs on 28 November 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 24 October 2018. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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). 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 visas, on the basis that the visa applicants did not meet cl 600.211 because the delegate was not satisfied each of the applicants genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. The sponsor (the review applicant) seeks review of the delegate’s decision.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicants gave evidence by way of a telephone hearing before the Tribunal on 3 March 2021.  The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration for the first named applicant and the decision under review should be affirmed for the second named applicant.

   BACKGROUND

8. The visa applicants, Mrs Marina An and Mr Prem Chanthys, are a married couple. Mrs Marina An was born in September 1980 and Mr Prem Chanthys was born in August 1981. They are both nationals of Cambodia. They have three children together, one daughter and two sons. They have never been to Australia. In their application for a Visitor visa, they stated that they are self-employed and own their own business. They wish to travel to Australia for a period of up to three months.

9. The review applicant, Mrs Maratana An, is the sister of the first named visa applicant. She is an Australian citizen. She arrived in Australia on 27 June 2009 on a Tourist visa. On 21 February 2013 she was granted an 801 Partner visa on the grounds of being in a genuine and continuing relationship with her now husband. She applied for and was granted Australian citizenship on 3 April 2017.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, the visa applicants seek the visas for the purposes of visiting family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

12. 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)).

13. The review applicant told the Tribunal the visa applicant had not travelled outside Cambodia. Her parents had been to Australia twice on Visitor visas and on both occasions had complied with their visa conditions. Her two sisters had also visited, one sister came in 2012 and her other sister came in 2018. On both occasions they complied with the terms of the visa granted.

14. 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.

15. In considering whether the visa applicant would comply with these conditions the Tribunal was mindful of the evidence given by the review applicant as to why the visa applicant was seeking to come to Australia to visit her and her family. The review applicant said her sister had not been to Australia to see her. Her other family members had had that opportunity and she wanted her sister to have it to. She said her sister and her husband had three children aged fourteen, nine and six. They lived with the parents of the review applicant and ran the mixed business her father used to operate. Her parents considered it would be a good opportunity for the visa applicants to come to Australia while they were able to look after the children and the business. The Tribunal accepts it is the intention of the visa applicant to visit her sister and her family in Australia.

16. The Tribunal accepts it is not the intention of the visa applicant to work in Australia or to engage in study or training for a period for more than three months.

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

18. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of her proposed stay in Australia. The review applicant gave evidence that her sister had not previously been to visit her in Australia. She stated she wanted to spend time with her and for her children to spend time with her.

19. The review applicant gave evidence that the visa applicant wants to come to Australia for one month maximum. She said her sister feels a great sense of responsibility to her children and to her parents. Given her parents would be looking after her children and her business she would not leave them for a longer period.

20. The Tribunal asked the review applicant what incentives the visa applicants have to return to Cambodia at the end of their permitted stay in Australia.

21. The review applicant responded that their incentives to return are their family. In addition to their children they have parents and their extended family in Cambodia. They see each other frequently as they live near each other. There is only the review applicant and her family in Australia. The balance of their family is in Cambodia. When asked what would happen if they come here and change their mind and do not want to return to Cambodia, the review applicant responded that the visa applicants love their family and feels a great sense of responsibility to them. The review applicant said that would draw them back.

22. The Tribunal has considered the evidence given by the review applicant. She is missing her family and wants her family to meet her baby and form a relationship with him. The review applicant has worked very hard to make a new life in Australia since she came here in 2010 and she wants to show her sister her new country. The review applicant stated that the visa applicant is law abiding and that all the members of the review applicant's family are also law abiding as was evidenced by her parents and other two sisters complying with their visa conditions when they visited Australia. The review applicant said it was important her family members were able to come and visit her and she understood that could only happen if they complied with the conditions of any visa they were granted.

23. The review applicant stated that if the Department requires a security bond, she was prepared to lodge a bond. She had ready access to funds to be able to do this.  

    Findings

24. Having considered all the evidence, the Tribunal is of the view that the review applicant is a credible witness. The Tribunal makes the following findings based on her evidence. The Tribunal would have benefited from being able to speak with the visa applicants and being able to discuss the Tribunal’s concerns with them.

25. Overall, the Tribunal has formed the view that the visa applicants have strong reasons to remain in Australia if they travel as a couple. While they would have the incentive of their children in Cambodia, they would know they were being well cared for if they were to take the option of staying and pursuing employment opportunities in Australia. The Tribunal is not satisfied that the visa applicants intend to comply with the conditions to which their visas would be granted if they both were to travel to Australia. In particular, the Tribunal is not satisfied that they would comply with conditions 8503 and 8531.

26. However, if the first named visa applicant was to travel on her own, the Tribunal is of the view that the presence of her husband and children in Cambodia would constitute a strong incentive for her to return to her county within the period of permitted stay. The Tribunal places weight on the fact that family members had previously travelled to Australia and complied with visa conditions and is mindful that her other two sisters visited on their own and returned to their families at the end of their permitted stay. Thus, the Tribunal has formed the view that if the visa applicant were to travel on her own, she would be able to fulfil the purpose of spending time with her sister and newborn child and return to her family and her home country within the period permitted by the visa. She therefore meets cl. 600.211. The Tribunal is not satisfied she would do that if she were to travel with her husband.

27. The Tribunal accepts that the review applicant will provide the visa applicant with accommodation and food. The Tribunal accepts that it is important to the review applicant that her family members are able to visit her in Australia especially during this time when she has a newborn child. The review applicant will ensure that the visa applicant complies with the conditions of her visa so as not to jeopardize other family members' prospects of obtaining Visitor visas in the future. The Tribunal is of the view that this would also provide a further incentive for the visa applicant to comply with the conditions of her visa.

28. For the reasons stated above, the Tribunal is not satisfied the second named visa applicant  intends to comply with visa conditions 8503 and 8531 and the Tribunal is not satisfied they genuinely intend to stay temporarily in Australia for the purpose for which the visas would be granted. The Tribunal is not satisfied the remaining visa applicant meets cl. 600.211.

    Conclusion

29. For the above reasons the Tribunal is satisfied that the first named 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 by this applicant.

30. The Tribunal is not satisfied that the remaining 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 by the second named visa applicant.

    DECISION

31. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations.

    The Tribunal affirms the decision not to grant the second named visa applicant a Visitor (Class FA) visa.

    Moira Brophy
    Member