Ballard (Migration)

[2017] AATA 1336

Ballard (Migration) [2017] AATA 1336 (2 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mark Anthony Ballard

VISA APPLICANT:  Mrs Sompis Ballard

CASE NUMBER:  1700430

DIBP REFERENCE(S):  200206

MEMBER:Tania Flood

DATE:2 August 2017

PLACE OF DECISION:  Sydney

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 02 August 2017 at 4:40pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) (Class FA) – Sponsored Family stream – Genuine temporary entrant – Marriage to review applicant – Review applicant’s frequent travel to Thailand – Applicant’s business and family responsibilities – Incentives to return – Previous compliant visits

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211, cl 600.231, Condition 8101, Condition 8201, Condition 8503, Condition 8531

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 November 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 November 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 she failed to demonstrate sufficient incentive to leave Australia at the end of an authorised stay or to abide by the conditions of the visa.

5. The review applicant appeared before the Tribunal on 2 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

   BACKGROUND

7. The visa applicant was born on 1976 in Thailand.  She was married to the review applicant on 3 July 2016.  She has a son and daughter in Thailand who will not be travelling with her to Australia.  At the time of application she indicated she was a housewife.  

8. The review applicant was born on 31 August 1972 and is an Australian citizen.  He is a carpenter. He has a daughter who lives with her mother.   He travels to and from Thailand on a regular basis. 

   TRIBUNAL HEARING

9. At the Tribunal hearing the review and visa applicants provided consistent evidence which is summarised as follows:

10. The review and visa applicant’s met in Australia approximately two and a half years ago when the visa applicant had ended her marriage to her first husband (also an Australian citizen).  They were married on 3 July 2016.

11. Whilst married to her first husband the visa applicant applied for a Partner visa which was never granted because the relationship fell into difficulty.  She applied for a partner visa at that time because her ex-husband was not in a position to travel to Thailand frequently.  The review applicant, on the other hand, enjoys spending time in Thailand and travels to see her every two months or so for about four weeks at a time.

12. The visa applicant travelled to Australia five times during her first marriage.

13. The review applicant works as a Carpenter.  He is currently employed in a friend’s business because his friend understands his situation and is prepared to replace him while he is overseas. 

14. The review applicant lives alone in rental accommodation.  He has a 17 year old daughter who lives with her mother.

15. The visa applicant lives in her own home with her mother.  Her two children are studying in Bangkok and reside with their father but return home regularly for visits. 

16. The visa applicant was until recently supported with remittances sent to her by the review applicant. Recently she has rented a shop to establish a clothing retail business.  She will finalise the lease on 15^th August and commence operations thereafter.  If granted a visa to Australia she will ask a friend to run the business while she is away.

17. The review and visa applicants last saw each other about two months ago when the review applicant travelled to Thailand.  It is his practice to travel to Thailand every two months or so but it takes a financial toll and that is why he would like the visa applicant to be able to visit him here on occasion so that he can continue to work for longer stretches of time.

18. The visa applicant applied for a visa for six months but she will only come for one to two months because she has to return to her new business.  Also she has her home, her mother and her pets to care for.

19. The visa applicant does not intend to work or study or to apply for a Partner visa while she is in Australia.  For the time being she is happy to remain living in Thailand as the review applicant also likes spending time in Thailand and travels there frequently.  Perhaps some time in the future they will consider applying for a Partner visa but not now.

20. The review applicant is willing and able to pay a security bond if he is required to do so to enable the visa to be granted.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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.

22. In the present case, the visa applicant seeks the visa for the purposes of visiting her husband. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

23. 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)).

24. The review applicant is an Australian citizen.  The visa applicant has previously visited Australia five times as the holder of a subclass 676 visitor visa.  The Tribunal has reviewed the department’s movement records and notes that there is no adverse migration history to consider.

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.600.612):

    ·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.

26. The review applicant is employed as a Carpenter and is in a position to, and does, send money to the visa applicant in Thailand for her upkeep.  He has produced bank statements which confirm regular payments to the visa applicant.  The visa applicant will reside with the review applicant for the duration of the visit and he will provide for her living expenses.  The evidence before the Tribunal indicates that the visa applicant is in the process of opening a retail business in Thailand which she will personally operate.  She will be required to return to Thailand to ensure the development of this business and is therefore only proposing to remain in Australia for one or two months.  The Tribunal is satisfied the visa applicant has no need to and will not work during her proposed stay in Australia.  The Tribunal is also satisfied she will not engage in study or training in Australia.  The Tribunal is satisfied the visa applicant will comply with condition 8101 and condition 8201 if she is granted a visa.

27. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia.

28. At the time of the delegate’s decision the visa applicant was not engaged in formal employment.  The evidence before the Tribunal is that she is now in the advanced stages of opening her own retail business with the support of the review applicant.  As noted above, she only intends to visit Australia for one to two months because she will be required to return to Thailand to continue to develop the business.  The Tribunal considers this new business venture, which is being jointly entered into by the review and the visa applicant, provides an incentive for her to return to Thailand at the end of her visa.

29. While it is acknowledged the visa applicant’s children are seventeen and twenty and living for the most part with their father in Bangkok they nevertheless maintain a room in the visa applicant’s house and return to visit her whenever their studies permit.  The visa applicant’s mother is also living with her.  The Tribunal considers the visa applicant’s family members in Thailand are also an incentive for her to return home at the end of her visa.

30. The Tribunal has given much weight to the review and visa applicant’s intentions regarding their living arrangements.  The Tribunal is satisfied the review applicant greatly enjoys spending time in Thailand as evidenced by his frequent travels there.  The evidence before the Tribunal is that the visa applicant is content to remain living in Thailand provided her husband continues to be able to maintain his frequent visits.  While the Tribunal does not discount that the visa applicant may eventually wish to live in Australia with her husband it is satisfied, based on their oral evidence, that this is not their intention for the foreseeable future.  On the contrary, the Tribunal is satisfied that the review applicant is seeking to spend longer periods of time in Thailand which is another reason he is supporting his wife to establish a business.

31. The Tribunal notes, and has also given weight to the fact the visa applicant has previously visited Australia five times and complied with the conditions of her visas.

32. The review applicant has indicated he is willing to pay a security bond and the Tribunal considers this also adds support to the visa applicant’s claim to only want to visit Australia temporarily.

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

34. 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

35. 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.

    Tania Flood
    Member