Bui (Migration)

[2019] AATA 1826

Bui (Migration) [2019] AATA 1826 (6 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Ai Bui

VISA APPLICANT:  Mrs Thi Phuc Tran

CASE NUMBER:  1724431

HOME AFFAIRS REFERENCE(S):           CLD2017/3964605

MEMBER:Mary Urquhart

DATE:6 June 2019

PLACE OF DECISION:  Melbourne

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 06 June 2019 at 1:21pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting family – husband and young children in Vietnam – two married daughters and grandchildren in Australia – past compliance with visa conditions – possible future travel by other family members – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 October 2017 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 25 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 Tourist 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 on balance they found a combination of factors to remain in Australia outweighed incentives to return home. These included that the applicant was of working age, had no dependent family in Vietnam, had not provided evidence of savings history and whilst working applied to visit for 3 months.

5. Prior to the hearing the Tribunal  received further documentation in support of the application including the following:

   ·     A copy of the Delegate’s decision

   ·     Information regarding past visits to Australia by the visa applicant in 2009 and with her husband in 2015

   ·     Marriage certificate of applicant and her husband Bui Quang Minh registered 1983.

   ·     Information that the applicant’s husband and two younger sons (including a minor son) and 1 daughter, will remain in Vietnam.

   ·     Bank Statement;

   ·     Income confirmation statement obtained from Local Authority calculated on Coffee and Black pepper produce.

   ·     Documentation of term deposit in applicant’s name.

   ·     Family registration documentation.

   ·     Copy of land use right documentation.

   ·     A Statutory Declaration from the review applicant

6. The review applicant appeared before the Tribunal on 6 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Dai Khac Dinh, husband of the review applicant, Ms Thi Tu Linh Bui, a second daughter of the applicant living in Australia and from the visa applicant by telephone from Vietnam.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. 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)). The applicant has previously visited Australia in 2009 and 2015 and has returned home and abided by the visa conditions. Weight is given to this history.

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

    ·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. As indicated by her visa application, and as given in her evidence the visa applicant is a citizen of Vietnam born in 1959.

13. The Tribunal notes the Delegate had concerns that the applicant may be tempted to work if granted a visa to visit. The Tribunal on review notes the applicant’s age is 60 and that she is currently involved with running a farm with her husband. She grows coffee and pepper. The evidence is that she is involved in hiring workers, watering and pumping water, care for products and plants and picking during the harvest.

14. The Tribunal notes her married status and the evidence that she has a husband and 2 sons and a daughter in Vietnam, and that this includes her youngest son who is at school in the equivalent year to Grade 8. Whilst acknowledging the applicant is of working age the Tribunal is satisfied that the visa applicant would not engage in any work, study or training in Australia.  Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa conditions 8101 and 8201. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

15. Documentation now before the Tribunal confirms her land use rights in relation to the farm she owns and runs with her husband.

16. As recorded in the delegate’s decision, a copy of which was provided to the Tribunal , the delegate was not satisfied as to her savings history or that she would return to work as she was seeking  a three month visit to Australia. The visa was refused on the basis that the delegate was not satisfied that a temporary visit was genuinely intended.

17. As confirmed by the applicant at the hearing, the visa applicant’s husband, two sons and a daughter will remain at home during her visit. The evidence is that her younger son is aged 8 and is financially and emotionally dependent on his parents.

18. The applicant has two married daughters in Australia and two grandchildren. She has previously visited Australia and abided by conditions.

19. The review applicant is the daughter of the applicant. At the hearing, the review applicant told the Tribunal that she is married with one child. She has provided documentary evidence regarding her financial ability to support her mother’s visit. A second married daughter of the applicant also gave evidence.

20. The Tribunal asked the review applicant what incentives there were for the visa applicant to return in compliance with her visa conditions. The review applicant said her mother would return home as she has strong ties to her husband and other children and is very much engaged in the work of the farm.

21. The Tribunal then spoke to the visa applicant. She confirmed her land right use, her farm work and her family responsibilities at home to her husband, young son and other close and extended family. She spoke of past travel including to the USA where another of her married daughters lives.

22. After careful consideration the Tribunal finds there are persuasive incentives for the applicant to return home at the end of any visit. It also accepts as convincing her desire to travel to Australia to see her daughters and young grandchildren (18 months and 3 years) here for up to 3 months. 

23. The Tribunal gives particular weight to past travel and the possible future travel by other family members. It notes the consistent oral evidence provided and the documents now submitted. Whilst the applicant has two settled married daughters in Australia the Tribunal accepts on balance that the visa applicant  will return home in order to continue her role as wife, mother and farmer (together with her husband).

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

25. 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

26. 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.

    Mary Urquhart
    Member