Khut (Migration)

[2021] AATA 3871

Khut (Migration) [2021] AATA 3871 (7 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Chanthy Khut

VISA APPLICANT:  Mr Sopheak Khut

CASE NUMBER:  2002087

HOME AFFAIRS REFERENCE(S):          BCC2019/6626650

MEMBER:Jennifer Cripps Watts

DATE:7 October 2021

PLACE OF DECISION:  Sydney

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; and

·cl.600.231 of Schedule 2 to the Regulations

Statement made on 07 October 2021 at 10:42am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to remain or return – review applicant, her family and other relatives in Australia, father, siblings and steady employment in home country – previous compliant travel by family members – intention to comply with conditions – intention to sponsor other family members and offer of bond – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.221, 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 Home Affairs (the Minister) on 30 January 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 10 December 2019. 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 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 (Cth) (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 Minister refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the Minister was not satisfied that the visa applicant genuinely intended to stay in Australia temporarily for the purpose of the visa.

5. The review applicant appeared before the Tribunal, by MS-Teams, on 5 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr Sam Orm, and by phone from the visa applicant in Cambodia. The Tribunal hearing was conducted with the assistance of an interpreter in the Cambodian Khmer and English languages, as required. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 (cl.600.211(a)); whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)); and any other relevant matter (cl.600.211(c)).

   Background

8. The visa applicant works for a company called the Dynith Commercial Company in Phnom Penh, Cambodia, where he conducts credit checks and land appraisals.  He holds the position of Credit Officer and evidence was given that he has worked there in that capacity for about four or five years, since obtaining a Bachelor of Law from the Royal University of Law and Economics in Phnom Penh.  He currently lives with one of his sisters and his niece in Phnom Penh.  The father and a brother of the visa applicant live about 25 kilometres away, outside the city.  The visa applicant’s mother passed away in late 2019. 

9. The visa applicant and his father applied for visitor visas in December 2019.  The applicants’ father had his visa granted and travelled to Australia in January or February 2020.  This was only shortly before international travel restrictions were put in place due to the COVID-19 pandemic, limiting travel into or out of Australia.  The applicants’ father had a 12 month visa and applied for a six month extension to the visa, which was granted.  Oral evidence was given that he departed in about May 2021, before the visa ceased.

10. Prior to their father’s 2020 trip to Australia, the applicants’ mother and father had travelled here twice, as had other close family members.  Mr Orm gave evidence that the only person in his wife’s family who has not been granted a visitor to visit Australia is her brother, the visa applicant.  The applicants and Mr Orm all gave consistent evidence that the visa applicant has worked for Dynith Commercial Company for four to five years, that it is a ‘steady’ job, that he has been granted leave of three months to travel to Australia to visit his sister, that arrangements have been approved for someone to fill in for him while he is away and that he will go back to the same job when he returns from Australia.

11. Oral evidence was given that the applicants’ sister has travelled to Australia twice, to visit the review applicant, in 2010 and 2018, for about three months on each occasion.

12. In 2014, the review applicant and Mr Orm married in Australia.  They gave oral evidence that the applicants’ brother and parents came to Australia for their marriage, that they stayed for a ‘few months’.  The Tribunal was told that a $10,000 or $15,000 bond was put up for the applicants’ brother.  He and all members of the applicants’ family departed Australia before their visas ceased.

13. The Tribunal has had regard to documents provided at the time of application and to the oral evidence that was given by the review and visa applicant (the applicants) and Mr Orm, and other relevant information including Departmental policy relating to visitor visas contained in PAM-3.

    Intention of the visit

14. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister, who is an Australian citizen. This is a purpose for which a visa in the Sponsored Family stream may be granted.

15. The applicant meets cl.600.231.

    Does the applicant genuinely intend to stay in Australia temporarily?

16. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose meeting cl.600.231, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

17. The visa applicant has not travelled to Australia previously.  He has never held an Australian visa.  Therefore, cl.600.211(a) is not applicable.

18. 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.

19. The visa applicant has a job in Phnom Penh, mentioned earlier, from which he has had leave approved for the purpose of travelling to Australia.  The Tribunal is satisfied that the purpose of his planned three month visit is for a holiday staying with his sister and her family in and that he is not intending to work during the period of the visa.  The applicants have other relatives who live in Australia and the visa applicant plans to catch up with them as well. 

20. The visa applicant gave evidence that he holds a Bachelor of Law from the Royal University of Law and Economics in Phnom Penh, awarded in 2015.  There is no information before the Tribunal that suggests he is intending to engage in any study for any period in Australia.

21. The Tribunal is satisfied that the visa applicant understands condition 8503 and that he must not remain in Australia after the visitor visa ceases. 

22. For these reasons, the Tribunal is satisfied that the visa applicant intends to comply with the conditions, above, to which the visa would be subject.

23. Therefore, the visa applicant meets cl.600.211(b).

24. The Tribunal has also considered other relevant matters (cl 600.211(c)).  The review applicant has indicated, in the visa application, that she will arrange for the lodgement of a security bond for the visa applicant if requested to do so.  However, most relevant, in the Tribunal’s view, is the impeccable visa history relating to the applicants’ family members, including their parents and siblings.  All who attended the hearing say that the visa applicant would engage in no behaviour that would put future visitor visa applications in jeopardy for him or his family members who live in Cambodia and the Tribunal accepts there oral evidence, generally and as to this matter specifically, to have been credible.

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; and

    ·cl.600.231 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    Member