Chieobangyang (Migration)

[2021] AATA 1598

Chieobangyang (Migration) [2021] AATA 1598 (30 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Jureemat Chieobangyang

VISA APPLICANTS:  Mrs Tasana Chewbangyang
Mr Pisarn Chewbangyang

CASE NUMBER:  1826825

HOME AFFAIRS REFERENCE(S):          BCC2018/3166800

MEMBER:Roslyn Smidt

DATE:30 March 2021

PLACE OF DECISION:  Sydney

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

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 30 March 2021 at 2:55 PM

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – evidence of employment and assets – offer to provide a bond – relatives and social connections in Thailand – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222; Schedule 8, Conditions 8101, 8201

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 7 September 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 22 August 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 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 visas, on the basis that the visa applicants did not meet cl.600.211 because they had not provided evidence of employment, asset or other incentives to return to Thailand at the end of their stay.

5. The review applicant appeared before the Tribunal on 29 October 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa applicants are husband and wife. They are aged 55 and 52. The review applicant is the husband’s sister. She has resided in Australia for many years and holds Australia citizenship. She has been employed by an Australian airline for over 30 years.

8. According to their applications the applicants have been employed as managers at the Tasana Tourist Park since 1 July 2010.

9. At the hearing I explained that one of the requirements for grant of a visitor visa was that the applicant genuinely intended to depart Australia within the time allowed on the visa and that decision makers looked at a number of factors in assessing this requirement, such as whether the applicant had family ties or a job or business assets which would be an incentive for them to return to their homeland and observed that little evidence had been provided which demonstrated that her brother and sister-in-law had strong incentives to return to Thailand.

10. The review applicant said that her brother had an adult son from his first marriage, but no dependents. She said that the in addition to the visa applicant she had two brothers and a sister who resided in Thailand. These siblings were well established in Thailand. The visa applicant had more modest means because he had remained in his home area and cared for their mother until her death. The review applicant wanted to bring her brother and his wife to Australia for a short holiday as acknowledgement of this. She said that her bother and his wife operated a small tourism business involving camping and kayaking activities which had a Facebook page but no official documentation due to its size and manner of operation. The review applicant stated that she would fund all of the costs related to the visa applicants stay in Australia. She provided a document from Westpac Bank which states that she has a very large sum of money held in a bank account.  She said that she was prepared to provide a bond in support of her brother’s application and that she was aware of the consequences for her and her brother if he breached of the conditions on his visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. In the present case, the visa applicants sees the visa for the purposes of visiting relatives in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

13. 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 applicants have not travelled to Australia previously and cannot be assess against this criterion.

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.600.611(2)):

    ·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. I found the review applicant’s evidence at that hearing convincing. I accept that she will fund the applicants’ trip to Australia and support them during their stay. In these circumstances and given their age and lack of English language skills I accept that they will not work during their proposed brief stay in Australia. There is nothing which suggests that they have any intention of undertaking study or training for more than 3 months, or indeed at all.  I am satisfied that they do not have the need or the intention of working or studying during their stay in Australia. I am therefore satisfied that they will comply with conditions 8101 and 8201.

16. Condition 8503 refers to entitlement and is not a condition that involves compliance. 

17. With regard to the applicants’ the requirement that the applicants leave Australia after their permitted stay, their modest means and lack of dependents in Thailand might appear to suggest that they do not have a strong incentive to return their homeland. However, apart from the review applicant all of their relatives and social connections are in Thailand. Their age, lack of English and lack of skills and suggest that they would have difficulty establishing themselves in Australia, particularly as they would not have legal status and would have no support networks apart from the review applicant who clearly expects and believes that they will abide by the conditions on their visa. Overall, I do not believe that there are sufficient incentives for them to remain in Australia rather than return to the business and established life in Thailand.

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

19. For the above reasons the Tribunal is satisfied that the visa applicants genuinely intend 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

20. The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Roslyn Smidt
    Member