Ha (Migration)

[2017] AATA 2348

Ha (Migration) [2017] AATA 2348 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr David Ha

VISA APPLICANT:  Mr Tan Tai Ha

CASE NUMBER:  1709549

DIBP REFERENCE(S):  BCC2017/1440868

MEMBER:Mary Urquhart

DATE:9 November 2017

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 9 November 2017 at 11:28am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Credibility of the applicants – Previous compliance by family members – Employment and business interests – Sufficient funds to cover travel costs

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 600.211, cl 600.212, cl 600.231

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 26 April 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 20 April 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 Sponsored Family 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 the delegate was not satisfied the applicant intended a genuine visit only.

5. The review applicant appeared before the Tribunal on 8 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Thu Hao Ha and from the visa applicant Mr Tai Tan Ha by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent. Prior to the hearing the Tribunal  received further documentation in support of the application being  letters from the applicant’s employer and monthly tax reports including March 2017 and  bank statements showing salary deposits and bonuses received by the applicant from his employer and old passports.

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 Sponsored Family stream may be granted: cl.600.231.

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)).

11. The applicant has not previously travelled to Australia. He has had a previous visa application for Australia refused. However the applicant has travelled to Thailand, Hong Kong, Cambodia, Malaysia and Singapore.

12. The Tribunal notes the visa applicant travelled with his mother to Singapore and that he has family, a sister, living  there. The Tribunal notes there is no evidence to suggest the visa applicant did not comply with  visa conditions. The Tribunal takes his past travel history , as evidenced in old passports, into account.

13. 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.

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

15. At the outset the Tribunal records it did not find the applicant’s sister, Ms Thi Thu Hao Ha to be a reliable witness. Her evidence contained clear inconsistencies in particular as to whom she lived with; other evidence appeared exaggerated for the purpose of strengthening the application. However the Tribunal found the review applicant and visa applicant each gave their evidence in a straight forward manner and the Tribunal finds them to be credible and reliable witnesses and in determining the application gives significant weight to their evidence.

16. The applicant lives in Vietnam with his mother. He has a sister living and working in Singapore, a sister currently living in Vietnam and his three brothers are all Australian citizens living here. The Tribunal notes that the applicant’s mother has a valid multiple entry visas for Australia. His sister Ms Thi Thu Hao Ha who is usually resident in Vietnam, obtained in September 2017, a visa and green card to migrate to the USA. The Tribunal considers the applicant’s family ties in Vietnam are not strong incentives for him to return at the end of any visit. However the Tribunal is satisfied that other matters mitigate the family tie factor.

17. The Tribunal makes a favourable decision in this case for a number of reasons. These include the credibility of the review applicant and visa applicant as well as the previous travel by the applicant and his mother to a number of countries without any evidence of visa breaches, as mentioned above.

18. The Tribunal gives significant weight to the evidence of previous visits by family members who complied with visa conditions. The Evidence is that the applicant’s sister visited Australia in 2005, 2016 and in March 2017. She returned home in accordance with the permitted period of the visit. The Tribunal notes she is currently in Australia having arrived on 6 or 7 November. The applicant’s mother holds a valid multiple entry visa. The Tribunal gave significant weight to the evidence of visas granted to other family members.

19. Significantly the Tribunal gives weight to the additional documentary evidence submitted to the Tribunal relating to the applicant’s employment and business interests and finds it supports sufficient incentives for him to return to Vietnam at the end of any permitted stay in Australia.

20. Having considered all the evidence the Tribunal accepts that the visa applicant wishes to come to Australia for the purpose of visiting family.

21. The Tribunal accepts that the applicant has sufficient funds to cover the costs of the travel.

22. The Tribunal is satisfied that the visa applicant has no intention of working studying or undertaking any training in Australia and is in good health. The Tribunal accepts that the visa applicant intends to comply with the conditions of the visa

23. The Tribunal discussed with the sponsor the possibility of a bond being required. The review applicant was able to explain what this meant and what would happen if the visa applicant did not return to Vietnam and the general consequences for future family visits. Whilst the imposition of a bond is at the discretion of the department the Tribunal would support a bond being imposed.

24. 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

25. 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