Boontang (Migration)

[2019] AATA 1831

Boontang (Migration) [2019] AATA 1831 (4 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Pratuang Boontang

VISA APPLICANT:  Mr Patsakon Boontaeng

CASE NUMBER:  1817760

HOME AFFAIRS REFERENCE(S):           BCC2018/1504769

MEMBER:Adrienne Millbank

DATE:4 June 2019

PLACE OF DECISION:  Brisbane

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.

·cl.600.232 of Schedule 2 to the Regulations.

Statement made on 04 June 2019 at 3:36pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – visiting brother and family – intention to comply with visa conditions – wife and young children – farm responsibilities – credible testimony – relationship between visa applicant and sponsor – differences in spelling of surname – copies of household registrations – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 600.211, 600.232

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 May 2018 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 is a 43 year old national of Thailand. He farms sugar cane, rubber and cattle on family-owned land. His wife is a school teacher. He has two young daughters aged 4 and 5 years, and an older step-daughter. The review applicant is his older brother who migrated to Australia as a skilled migrant in 2007 and has since this time worked, at the time of decision as farm manager, in a prawn aquaculture business on the Gold Coast. The review applicant obtained Australian citizenship in 2014. He lives with his wife, an assistant nurse, and two sons who are still students.

3. The visa applicant applied for the visa on 3 April 2018. 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.

4. At the time of application the visa applicant applied for a three month visa, and proposed a stay of one month, from 1 May 2018 to 2 June 2018. At the time of decision, the intention is that the visa applicant would visit for up to one month, around December 2019 and January 2020.

5. 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; and cl.600.232, which requires, at cl.600.232(2), the visa applicant to be sponsored by a settled Australian citizen or a settled Australian permanent resident who is at least 18 and a relative of the applicant; or a relative of another applicant who is a member of the family unit of the applicant; or a relative of another applicant in relation to whom the applicant is a member of the family unit.

6. The Delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. The Delegate was not satisfied on the evidence provided that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. The Delegate further found that the visa applicant did not meet cl.600.232. The Delegate was not satisfied on the evidence provided that the relationship between the visa applicant and the sponsor, whose names were spelled differently in the application forms, had been adequately demonstrated.

7. The review applicant appeared before the Tribunal on 14 May 2019 to give evidence and present arguments.

8. Information and evidence was provided to the Tribunal that was not provided to the Delegate.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issues in this case are whether cl.600.211 and cl.600.232 are met.  

11. Clause 600.211 of the Regulations 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.

12. Clause 600.232, in this case, requires the visa applicant to be sponsored by a settled Australian citizen or a settled Australian permanent resident who is at least 18 and a relative of the applicant; or a relative of another applicant who is a member of the family unit of the applicant; or a relative of another applicant in relation to whom the applicant is a member of the family unit. A ‘close relative’ is defined in r.1.03 of the Regulations as the spouse or de facto partner or a child, parent, brother or sister of the person; or a stepchild, step-brother or step-sister of the person. ‘Settled’ in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, is defined in r.1.03 as lawfully resident in Australia for a reasonable period.

13. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother and family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

14. 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)).

15. The visa applicant has not been granted a visa or entered Australia before. The Tribunal gives no weight to this consideration.

16. 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.

17. The visa applicant indicated at the time of application that he does not intend to work or study in Australia. The review applicant confirmed at hearing that the visa applicant intends to come only for the purpose of visiting family, for a holiday, and has no intention of working or engaging in study or training during his visit. The review applicant confirmed also that he and the visa applicant understood that the visa applicant would not be entitled to a substantive visa, other than a protection visa while remaining in Australia. The review applicant further confirmed and that he and the visa applicant understood that it would be a condition of the visa not to remain in Australia after the end of permitted stay.

18. The review applicant advised the Tribunal that he invited his brother to visit; that his brother is busy on the farm and would only be able to come during the down period on the farm at the peak of summer; and that he would not be surprised if his brother stayed only two or three weeks, rather than a whole month, because of the of the unpredictability of his farm work and the possibility of its being affected by the weather.

19. The review applicant was open and articulate at hearing. The Tribunal considered him a credible witness and accepted his testimony. The Tribunal is satisfied that the visa applicant intends to comply with the conditions which the Subclass 600 visa would be subject.

20. The Tribunal has considered all other matters relevant to the genuineness of the visa applicant’s intention to stay temporarily in Australia for the purpose for which the visa is granted (cl.600.211(c)).

21. Documents were provided to the Tribunal showing the visa applicant is the registered owner of sugar and rice farms. The review applicant advised that the visa applicant and his wife and children live with the visa applicant’s parents and an uncle in a large family household. The review applicant in written submissions and at hearing advised that besides producing commercial crops of rice and sugar cane, the farm has fruit and rubber trees, that the family raise cattle, poultry and fish in fish ponds; and that they have a ‘pick-up, minibus, two motorbikes and a tractor’. Photographs were provided showing the farmlands, rice and sugar cane harvests, cattle and fish ponds, the visa applicant with family members and other local agriculturalists, and the farm vehicles. The review applicant advised at hearing that his brother is not rich, but that he and his family live comfortably and are comparatively well-off.

22. The review applicant described at hearing how both he and his brother won scholarships in Thailand; the review applicant to study abroad, and the visa applicant to study agriculture in Thailand. The review applicant first came to Australia in 1989 to study aquaculture at a Queensland university, was sponsored to return to Australia in 2007 as a prawn farmer, and has remained working with the same company, at the time of decision as a farm manager.

23. The review applicant advised that he and the visa applicant are not particularly close, but that as the older sibling he feels responsible for maintaining family connections. He advised that he has returned to Thailand several times, finds the weather oppressively hot, and wants to show his brother how he and his family live in Australia. He advised that he sponsored their mother to visit in 2011, and that she enjoyed it but became homesick and returned earlier than anticipated.

24. Evidence was provided that the visa applicant’s wife is employed as a school teacher and that he has two young daughters aged 5 and 4 years old. In his written submission and at hearing, the review applicant stated that it was inconceivable that his brother could or would leave his wife and young children, or his farm responsibilities, for any longer than a month. He further stated that it was inconceivable that his brother, a respected agriculturalist and family man, would overstay a visa. As noted, the review applicant was an articulate and convincing witness, and the Tribunal accepted his testimony.

25. Having considered the evidence and circumstances of the parties, the Tribunal is satisfied that the visa applicant has significant incentives to return to Thailand and that these outweigh any incentives, including the presence of his brother, to remain in Australia.

26. The Tribunal therefore 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.

27. Regarding the family relationship between the review applicant and the visa applicant, the review applicant explained how the spelling of their surname has varied for the reason of the difficulty it poses to translators and interpreters because of its pronunciation. He described how family members still argue about the correct English spelling. Further identification documents were provided including of the visa applicant’s Thai National Identity Card and marriage certificate. Copies of household registrations were provided, showing the visa and review applicant’s parents with the review applicant and the visa applicant listed as siblings. Also provided were documents showing the visa applicant’s registration as an agriculturalist and owner of inherited land.

28. The Tribunal accepts on the evidence provided that the sponsor/review applicant is the biological brother of the visa applicant. Therefore their relationship meets the definition of close relative in r.1.03. The review applicant is a settled Australian citizen over the age of 18. Therefore the visa applicant meets cl.600.232.

    DECISION

29. 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

    ·cl.600.232 of Schedule 2 to the Regulations.

    Adrienne Millbank
    Member