Gelencir (Migration)

[2018] AATA 2932

Gelencir (Migration) [2018] AATA 2932 (22 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Vlatko Gelencir

VISA APPLICANT:  Mrs Thi Thanh Phuong Ly Tran

CASE NUMBER:  1728393

DIBP REFERENCE(S):  CLD2017/4610640

MEMBER:Adrienne Millbank

DATE:22 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 22 June 2018 at 3:00pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visa) – Tourist stream – Visiting Australian citizen husband – Compliance with the conditions attached to the visa –Genuine intention to stay temporarily – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359AA

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 22 September 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 (the applicant) applied for the visa on 7 September 2017. 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 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 applicant did not meet cl.600.211. The Delegate found that the applicant had failed to demonstrate sufficient evidence to support the likelihood of her compliance with the conditions attached to the visa and her return home at the end of her proposed stay in Australia.

5. The review applicant appeared before the Tribunal on 12 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant in Vietnam.

6. The review applicant was advised, pursuant to s.359AA of the Act, that it had access to information that would or could lead to the decision under review being affirmed, namely, his and the applicant’s international movement records, and information about the applicant’s former visa applications. The review applicant was advised that he could seek an adjournment during the hearing to consider his response to questions arising from this information, or at any other time. The review applicant did not seek an adjournment.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant was born in Vietnam in 1980 and is 38 years old at the time of decision. The review applicant, her husband, was born in Croatia in 1949, is 69 years old at the time of decision, and an Australian citizen. The parties married in Vietnam in 2015.

9. The applicant indicated on her application form that she intended to visit from 20 September 2017 to 20 March 2018, a period of six months. She stated that she would stay with her husband, and celebrate their wedding anniversary on 31 December 2017. She stated that she doesn’t like being away from her husband during Christmas. At hearing the review applicant acknowledged that the applicant is Buddhist, not Christian, and explained that she sees Christmas as a family holiday period. Both parties acknowledged that the review applicant has organised and managed all of the applicant’s visa applications.

10. At hearing the review applicant stated that the applicant now intended to come around October 2018, and that a period of three months ‘would be sufficient’. The applicant, however, when telephoned at hearing, stated that she ‘wants to come and live and stay with her husband’; that she wants ‘to have a baby’; and that she wants to come ‘for as long as possible to stay’.

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 applicant seeks the visa for the purposes of visiting her husband in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

    Compliance with visa conditions

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)).

14. The applicant first arrived in Australia on 16 January 2016 on a Visitor (subclass 600) visa, and stayed until 15 April 2016. She was granted another Visitor (subclass 600) visa on 4 May 2016, and visited Australia again from 8 May – 6 August 2016. She was granted another Visitor (subclass 600) visa on 12 August 2016, and visited Australia from 27 August – 26 November 2016. She lodged another application for a Visitor (subclass 600) visa on 4 January 2017. That application was refused on 18 January 2017.

15. The Tribunal asked the review applicant why the applicant had not lodged an application for a Partner visa, as it appeared, and he acknowledged, that she had been using Visitor visas to live with him in Australia and not to visit him temporarily. He stated that he and the applicant had planned to lodge a Partner visa application during her last visit, but before he had time to fill in the paperwork the applicant had to return to Vietnam in a rush, to care for her mother, when her mother had the accident and hurt her back. Given this admission, while acknowledging that the applicant has departed the country prior to the expiry of her previous Visitor visas, Tribunal cannot be satisfied that the applicant would return to Vietnam before the expiry of the visa.

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.600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

17. The applicant indicated on her application form that she did not intend to do a course of study while in Australia. However, for the reason of the parties’ stated intentions, discussed further below, the Tribunal does not find that the applicant genuinely intends to stay in Australia temporarily. The review applicant stated at hearing that the applicant intends, once she has residency in Australia, to seek employment. The Tribunal further considers, on the basis of the English language skills the applicant displayed at hearing, and the parties’ acknowledgement that the applicant’s intention is to live and work in Australia, that she would engage in English language courses if and when she is granted a resident visa.  There is no evidence to suggest, however, that the applicant would work or engage in study or training while on a Visitor visa, and the Tribunal therefore finds that the applicant intends to abide by conditions 8101 and 8201.

    All other relevant matters

18. The Tribunal has also considered all other matters relevant to genuine intention to stay temporarily in Australia for the purpose for which the visa is granted (cl.600.211(c)).

19. Regarding incentives to return to Vietnam, the review applicant argued that the main reason the applicant would return to Vietnam is to care for her mother, who has had a bad back since an accident in November 2016, when a bag of coffee fell on her.  He argued further that the applicant plays an important role in the family business, which is busy for six months of the year around the time of the coffee harvest.

20. At hearing however the review applicant stated that the applicant’s parents are considering selling the business, and the applicant stated that it is her intention to come to Australia as soon as possible, for as long as possible. The applicant spent nine months in Australia in 2016, and wants to live here permanently. In her previous application, which was refused, she intended to stay for six months. She has two sisters who live in Ho Chi Minh City and a brother, who lives and farms near their parents, who, as acknowledged by the review applicant, could help in a family emergency. Further, at hearing, the review applicant stated that the applicant’s mother’s back injury has improved. The applicant earns only AUD 220 a month from the family business. For these reasons the Tribunal finds the applicant’s employment in Vietnam and her mother’s bad back weak incentives for her to return to Vietnam before the expiry of a Visitor visa.

21. The applicant stated on her application form that she had been employed for four years as an ‘accountant/assistant’ in a ‘Family bussines’ (sic). At hearing the review applicant acknowledged that the applicant earned (as noted) only around AUD 220 a month in the family coffee business, sufficient for her living but not savings or travel expenses. The review applicant argued that the Department should have considered the applicant’s financial circumstance of being his wife. He stated that, while realising that the Delegate did not intend to malign him personally, he was offended by the Delegate’s finding, on the basis of the applicant’s employment and income, that she did not have personal funds at her disposal to fund her stay in Australia. He argued that the Delegate should have taken into consideration her access to his considerable financial resources, including $2 million in property assets in Australia.

22. The review applicant described plans to invest in a coffee roasting business in Vietnam; to spend six months of the year living in Vietnam, and for the applicant to spend six months of the year living in Australia. The Tribunal pointed out that while the review applicant had travelled often to Vietnam since his marriage in 2015, he had stayed for short periods, up to several weeks, while the applicant had stayed for three months on each of her trips to Australia. The review applicant stated that he has been busy working in Australia, and that his Vietnam-based coffee roasting enterprise is still in the planning stage.

23. The Tribunal accepts that the sponsor has the financial means to fund the applicant’s travel and living expenses in Australia, and, from the evidence provided, that he has deposited funds into the applicant’s bank account in Vietnam for her financial support, but does not find the review applicant’s Australia-based financial resources an incentive for the applicant to return to Vietnam.

24. In response to further questioning as to why the parties have not lodged a Partner visa application, the review applicant explained that he was under the assumption that if the applicant was granted a Provisional Partner (subclass 820) visa, she would not be able to leave the country for two years without jeopardising the application, and thus would not be able to return to care for her mother in a medical emergency. He explained further that he and the applicant had not lodged an offshore application for a Partner visa in Vietnam, because he was under the impression that it could take years to process an application from there, during which the applicant would not be able to come to Australia because she wouldn’t be able to apply for a visa while having another application under consideration.

25. The Tribunal advised the review applicant, who did not have an agent, that it believed the system to have more flexibility to accommodate people’s circumstances than he had assumed. The Tribunal made clear to the applicant that it was not able to provide advice regarding visa applications; that the success of any visa application would depend on whether the applicant met the criteria; and that he and the applicant should seek the Department’s advice as to how to proceed, in their circumstances.

26. The review applicant in conclusion stated that he has come to the conclusion that he has been remiss in not lodging a Partner visa application sooner, and that it is his intention to lodge one on his next visit to Vietnam, in a matter of weeks. He argued that given this intention, the Visitor visa should be granted, because the applicant would need to return to Vietnam to receive her Partner visa.

27. The Tribunal makes no finding on the genuineness of the parties’ relationship and is not in a position to foresee or rely on the outcome of a Partner visa application which has yet to be lodged. The Tribunal must determine, on the evidence before it, whether the applicant genuinely intends to visit Australia temporarily and return to Vietnam before the expiry of the visa. The applicant has only weak incentives to return to Vietnam, and her stated intention is to remain and live in Australia with her husband.

28. For the above reasons the Tribunal is not 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 not met.

    DECISION

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

    Adrienne Millbank
    Member