Gillespie (Migration) - [2024] ARTA 68

DECISION AND
REASONS FOR DECISION
Gillespie (Migration) [2024] ARTA 68 (22 October 2024)

Applicant:Mrs Kinh Thi Ngoc Gillespie
Visa Applicant:  Mr Phuoc Hau Bui
Respondent:  Minister for Home Affairs
Tribunal Number:  2310271

Tribunal:Senior Member L Nicholls
Place:Sydney
Date: 22 October 2024
Decision:The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration in accordance with an order 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 22 October 2024 at 4:21pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant and compliance with conditions – visiting sister – parents, other siblings, wife and young children in home country – application made during extended work break, with limited time available – previous compliant travel by other family members – review applicant’s willingness to pay security bond – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 May 2023 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 25 April 2023. 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.
The applicant for the visa (visa applicant) is a citizen of Vietnam and is 46 years old. The applicant for review (review applicant) is the visa applicant’s sister and she is 45 years old.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that the visa applicant had a genuine intention to stay temporarily in Australia for a family visit with his sister.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The review applicant appeared before the Tribunal on 21 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Background
The review applicant is 45 years and was born in Vietnam. She first came to Australia in August 2015 as a visitor. She and her husband married on 20 February 2015 and she was later granted a partner visa. She returned to Australia with her dependent daughter from a previous marriage to live with her husband in Sydney. Her daughter is now 22 years of age. She is currently working full time as an area manager in a supermarket business and her husband works fulltime in Sydney Trains. She is an Australian citizen.
The review applicant’s parents are living in Vietnam, and both are retired. Before their retirement her mother was a teacher, and her father was in the Army. She has one older brother and a younger brother and sister. Her sister is a teacher, and her younger brother joined the Army. Her older brother, the visa applicant, is a grain operator at a port in Vietnam.
The visa applicant is 46 years and is married and he and his wife have two children; his son is 12 years old, and his daughter is 4 years old. His wife is a full-time high school teacher. The visa applicant and his wife are living together in Long Xuyen City, An Giang Province.
Purpose and duration of proposed visit
In the present case, the visa applicant seeks the visa for the purposes of visiting his sister. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.221 and cl 600.222.
In the application for the visa the applicant seeks to visit for up to three months. The review applicant explained that at the time the application was made the visa applicant was not working because the port at which he worked as a grain operator was closed for repairs for about 8 months. As he had plenty of spare time, he was proposing to visit for three months but now he will only be able to visit for a shorter period due to work conditions.
The review applicant proposed that he will stay with the review applicant and her husband in their apartment during his stay. The visa applicant’s accommodation and other daily expenses will be provided by the review applicant and her husband.
Previous compliance and intention to comply with visa conditions
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 visa applicant has not previously travelled to Australia and thus there is no evidence he has failed to comply with any visa conditions.
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) OR (3) OR (4)] OR 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
The review applicant stated that, as far as she knows, the visa applicant does not intend to work or study in Australia, is not intending to apply for a substantive visa while in Australia and will return before the end of any permitted stay. She stated that she was aware of these conditions because other relatives had visited Australia on sponsored visitor visas.
Other relevant matters
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
The review applicant stated that her parents had travelled twice to Australia in 2016 and 2018, had complied with all visa conditions and returned to Vietnam before the end of their permitted stays. The review applicant’s niece has also visited twice in 2016 and 2018 and had complied with visa conditions and returned before the end of the permitted stays.
The visa applicant’s wife and two young children are residing in Vietnam as well as his parents, other siblings and extended family members.
The visa applicant is working as a grain operator in Vietnam and is the part owner of his family’s home as well as owning a 100 square metres block of land[1]. He and other family members do not have any financial problems in Vietnam. The visa applicant’s wife works as a full-time high school teacher and the family are well able to support themselves on their joint incomes.
[1] It appears that evidence of the visa applicant’s land holdings was provided to support a tourist visa application made on 20 May 2023. (BCC2023/2829342).
The visa applicant and his family members do not belong to any Christian or other religious groups. The review applicant stated that the family worships their ancestors in accordance with Vietnamese cultural traditions. Further her brother does not have any problems with police or security authorities.
The review applicant and her husband stated that they were willing to pay a security bond if requested by the Department. The applicant’s husband noted that they had indicated on the application form they were willing to pay a security bond. They both understood that the bond would be forfeited if the visa applicant did not comply with visa conditions. With respect to the delegate’s concerns about the visa applicant’s financial circumstances at the time of application the review applicant’s husband noted that there was no provision for them to include a statement of financial circumstances in the visa application form.
The review applicant stated that the reason that they had invited the visa applicant to visit was so that she could show him her lifestyle in Australia, to take him sightseeing to different parts of Australia and show him the different culture in Australia.
Assessment
In determining whether the visa applicant has a genuine intention to stay temporarily in Australia the Tribunal must consider the visa applicant’s individual’s circumstances including the reason for visiting Australia. The courts in the past have found that intentions of the visa applicant following the cessation of the visa, past travel to Australia and immigration history fell within the scope of ‘any other relevant matter’.
The Tribunal must weigh all the circumstances, including those factors which would encourage the visa applicant to return home and those which might encourage the visa applicant to remain in Australia past the period of any permitted stay and determine whether it is satisfied that the visa applicant intends to stay temporarily in Australia for the purpose of the visa.
Overall, the Tribunal considers that the factors which weigh in favour of the visa applicant having a genuine intention to stay temporarily outweigh other factors which might indicate that he would remain in Australia past the period of any permitted stay. The Tribunal accepts that the applicant has strong family ties in Vietnam which includes his wife and two young children as well as his parents and siblings. It accepts the evidence that he is employed as a grain operator in Vietnam and that he and his wife have sufficient income to support themselves and their children. It also accepts the evidence that they own property in Vietnam.
The review applicant’s parents and niece have visited on several occasions and have complied with their visa conditions. While this does not necessarily mean that the visa applicant will comply with his visa conditions it does suggest that the review applicant’s family respect the migration laws of Australia and have been generally compliant with visa conditions.
The Tribunal accepts that the economic conditions and standard of living is generally higher in Australia than Vietnam but the Australian Department of Foreign Affairs[2] reports that Vietnam has one of the fastest growing economies in the region of southeast Asia and hit a record high level of growth in 2022. Between 2002 and 2018 the poverty rate fell from 70% to below 6%. The official unemployment rate is about 2.4% and the rate of informal employment is very high. The Tribunal does not consider that the economic conditions in Vietnam will act as an incentive for the visa applicant to work or remain in Australia past the period of any permitted stay.
[2] DFAT Country Information Report Vietnam 11 January 2022 p.2.5 and 2.6.
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
The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration, in accordance with an order 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.
Date(s) of hearing 21 October 2024