Knapik (Migration)

[2020] AATA 1499

Knapik (Migration) [2020] AATA 1499 (20 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Arisa Knapik

VISA APPLICANT:  Ms Sujinchaya Chualee

CASE NUMBER:  1904049

HOME AFFAIRS REFERENCE:               BCC2018/6014864

MEMBER:Rosa Gagliardi

DATE:20 March 2020

PLACE OF DECISION:  Canberra (Australian Capital Territory)

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

Statement made on 20 March 2020 at 1:26pm

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – tourist stream – genuine intention to stay temporarily – previous compliant travel by applicant and other family members – support by sponsor and husband – partner, job, other family and rental income in home country – possibility of applicant working in Australia and later sponsoring partner – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 18 January 2019 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 7 January 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 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 visa applicant did not meet cl.600.211 because he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant/sponsor appeared before the Tribunal on 20 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s husband, Mr George Knapik.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

   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 her sister and family in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

   The hearing

10. The applicant is 37 years of age and a national of Thailand.  She is unmarried and has no children.  She lives in Chiang Mai with her partner.  She has been with her partner for approximately 3 years.  The applicant and her partner are renting their home.  The sponsor also advised that the applicant was working for a business that rented out wedding gowns, took photographs and provided make-up services – in essence it was a one stop-shop for weddings.  The sponsor stated that the applicant had been doing this work for over 2 years.  Prior to that the sponsor advised that the applicant was working independently with television stations, doing make-up and hairstyles for TV presenters.  At that time she was working in Bangkok and then moved to Chiang Mai.

11. The applicant’s parents are living in Thailand as is another sister. 

12. The sponsor stated that she herself came to Australia on a Partner visa about 16 or so years ago. 

13. The Tribunal asked whether the applicant had sponsored anyone else to Australia.  The sponsor replied that since her arrival in Australia she had sponsored her older sister and that the applicant had travelled to Australia twice previously.  Both her parents had also visited as had her brother-in-law. 

14. The sponsor stated that the applicant came to Australia in 2007 and returned to Thailand within the expiry of her visa.  In terms of the applicant’s second visit, she had been granted a multiple entry visa for one year but only came once and then returned within 3 months as she had to return to work in Thailand.

15. The sponsor stated that the applicant wanted to stay in Australia for three months.  She and the applicant were very close and the applicant was like a daughter to her.  The sponsor stated that she had not returned to Thailand for around 2 years. 

16. The Tribunal queried what the applicant might do in Australia for 3 months.  She responded that she had not seen the snow and enjoyed camping as they had already been camping in Australia during her previous visits. 

17. The sponsor stated that she had a business in the city working for her partner in accounting. 

18. The sponsor stated that the applicant would not likely be paid while she was away.  The Tribunal asked whether the applicant’s employer would have the applicant back on her return to Thailand and the sponsor stated, “Yes”.  Asked why she thought this, the applicant stated that the applicant was a great worker and she and her employer had been friends since college days; for about 8 years.  They were both instructors in applying make-up and the applicant’s partner also worked in the same business.  He was a photographer. 

19. The Tribunal asked why it should be satisfied that the applicant would not come to Australia to work in the make-up industry or in any other industry.  The sponsor stated that she would not permit the applicant to work as it would create a lot of problems. 

20. The sponsor’s husband, Mr George Knapik, gave evidence emphasising the applicant’s previous compliance with her visa conditions.  Indeed, on the second occasion she could have stayed for much longer as she had multiple entry rights, but she only came for three months due to her work commitments in Thailand.  

21. Mr Knapik stated that they were a multicultural family and they would like their son who is now 11 years of age to have contact with his mother’s language.  Mr Knapik stated that it was important to expose his child to another language as it was much harder to pick up a language later on.  He stated that were he to take his family to Thailand it would be costly for him, and he would need to take time off work.  In this particular case, the applicant could come to Australia and spend time with his family for the cost of only 1 airline ticket.  It would cost a fraction of what it would cost them all to go to Thailand.  Mr Knapik stated that he was a self-employed builder and could not spare several months to go overseas regularly. 

    
    

    Mr Knapik stated that the applicant had been fully insured when she was here in the past. 

22. Mr Knapik stated that the sponsor was more like a mother to the applicant given their age difference.  He confirmed that the applicant lived with her partner.  He stated that he considered it was a serious relationship. 

23. The sponsor stated that the applicant had a condominium in Bangkok she was renting out as she found the job opportunities in Chiang Mai were more favourable than in Bangkok. 

24. The Tribunal queried whether the applicant might not be coming to Australia in an attempt to establish herself here with her partner as she might find that having a family in Australia would be preferable.  The sponsor stated that the applicant loved her work and loved being in Thailand. 

25. Mr Knapik stated that if it had been their intention to achieve a migration outcome for the applicant they would have applied via the appropriate channels.  He stated that they wanted their contact to be regular. 

    Evidence submitted in support of the application

    ·Evidence of the applicant having funds in her account as at 21 December 2018, indicating that the applicant had 6,378.39 Thai Baht, the equivalent roughly of AUD340.35; and

    ·Statement from employer of the applicant indicating she earns 20,000 Thai Baht per month (AUD1,065.80).

    cl.600.211(a)

26. 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)).

27. The applicant’s movement records confirm that the applicant came to Australia on

    
    

    11 September 2007 and that she departed on 5 December 2007, on a Visitor visa due to expire on 11 December 2007.  The applicant returned to Australia on 10 November 2011 on a Tourist visa due to expire on 10 February 2012.  The applicant returned to her home country on 26 January 2012.

28. The Tribunal places significant weight on the applicant’s previous compliance history. 

29. At hearing it was stated that the applicant, while in Australia, did do make-up for friends and family.  The sponsor, when asked, stated that on those occasions, however, it was not for payment.  The Tribunal is prepared to accept that this is the case.

30. The Tribunal also places weight on the applicant’s parents, sibling and another relative having visited Australia and complied with their visa conditions during their stay here. 

    cl.600.211(b)

31. 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:

    ·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.

32. The applicant is seeking to stay in Australia for 3 months which is not an insignificant period for someone who would not be granted paid leave during her absence and for someone who has little life savings.  The Tribunal accepts that the sponsor and applicant wish to maintain contact given their close bond, and that the sponsor and her husband want their child to be familiar with his mother’s culture and language.  The Tribunal has also taken on board that it is an expensive exercise for the sponsor, her husband and child to travel to Thailand to spend time together with the sponsor’s family.  These are all valid considerations.

33. The Tribunal has also taken into account that the applicant, despite her modest means, will be supported by the sponsor and her husband who have a business and have the capacity to support the applicant’s needs in Australia during the proposed period of stay.

34. The Tribunal also accepts that the applicant has a partner of some three years’ standing and that the applicant works with him, and that along with her family members, represents a reason for the applicant to return to Thailand on expiry of her visa. 

35. In addition, the Tribunal accepts, even though it has little evidence before it, that the applicant’s income is supplemented by rental income from a condominium she owns in Bangkok.

36. Together with the applicant’s positive migration history, the above factors, do not, however, outweigh the Tribunal’s concerns that the applicant has a mobile trade in which if she were to work in Australia for 3 months, she would be able to earn a considerable amount to boost her savings in Thailand.  While the applicant may not have worked in Australia previously, the applicant’s current circumstances are that she now has a partner and is in a long-standing relationship. 

37. The Tribunal accepts that the applicant and her partner enjoy their jobs, particularly as they work for the same company.  Nonetheless, were the applicant to have aspirations to start a family with her partner, her age would mean that she would do so in the near future and that the applicant may have considered that Australia would be a better place to raise a family. As such it’s plausible that the applicant might explore avenues to remain in Australia by changing her status onshore.  Both the applicant and her partner have highly transferable skills that could be carried out in a free-lance manner were the applicant to sponsor her partner to Australia at a later stage.

38. The Tribunal appreciates that Mr Knapik stated that the cost of living in Australia is high but the applicant’s earnings in Australia would be higher and she would have access to universal health care.  

39. The Tribunal appreciates that the applicant may have an apartment in Thailand but such an asset could easily be liquidated to assist the applicant establish herself in Australia.

40. The Tribunal is satisfied that the sponsor and her husband are honest and law-abiding Australians and that they would try to encourage the applicant to abide by her conditions.  But the Tribunal is required to make a decision on the evidence before it which relate to the applicant’s circumstances.  The Tribunal has doubts that the applicant genuinely intends to stay temporarily in Australia because there is a possibility of the applicant, over a longer stay, crossing over from doing friends’ make-up without cost, to using her skills for payment. 

    cl.600.211(c)

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

42. The Tribunal has placed significant weight on the applicant’s and her family’s previous compliance with Australia’s migration laws in the past.  Nonetheless, the applicant is now at a different stage in her life where she may be attempting to maximise her income and build a future in a country where she would have the support of her sister and husband.  The Tribunal finds, therefore, that despite the applicant’s previous compliance, the applicant’s economic and personal circumstances do not lend themselves to the Tribunal being satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

43. The Tribunal considers that there is a paucity of evidence before it to convince the Tribunal that the applicant’s attachments in her home country, both material and immaterial, are such that they will motivate her to return to her home country. 

44. This does not mean that the applicant will never be able to travel to Australia.  While the sponsor and her husband were persuasive about their intentions to have the applicant comply with her visa conditions, the Tribunal is not satisfied, on the limited evidence on this occasion, that the applicant genuinely contemplates a holiday in Australia for 3 months, with little savings and which would entail a significant disruption to her earning capacity over an extended period.

45. 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

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

    Rosa Gagliardi
    Member