Lam (Migration)

[2018] AATA 5826

Lam (Migration) [2018] AATA 5826 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Thu Huong Lam

VISA APPLICANT:  Mrs Thi Hong Chuong Tran

CASE NUMBER:  1717093

HOME AFFAIRS REFERENCE(S):           BCC2017/2305445

MEMBER:Nicole Burns

DATE:11 December 2018

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 11 December 2018 at 3:43pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – intends to stay temporarily in Australia – visiting family – significant incentives to return to home country – family – business owner – complied with conditions of previous visa – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 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 24 July 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 27 June 2017. 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.

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.

5. The review applicant appeared before the Tribunal on 11 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, who is the review applicant’s cousin, via the telephone from Vietnam.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

8. In the present case, the visa applicant seeks the visa for the purposes of her cousin and other relatives in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

9. 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)).

10. Departmental records indicate that the visa applicant visited Australia from 21 February 2008 to 13 April 2008 as the holder of a visitor (Subclass 679) visa.  She departed before the expiry of that visa and there is no evidence of non-compliance with conditions of that visa. 

11. 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.

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

13. The review applicant told the Tribunal at hearing that her cousin, the visa applicant, initially sought the visa to visit her in Australia around the time her son was due to be born (in September 2017) to help her out during that time.  Now she just wants to visit to spend time with the review applicant, her son, and the visa applicant’s other relatives in Australia which include a number of aunts, uncles and cousins.  The review applicant said she plans to visit for two or three weeks however the visa applicant told the Tribunal she plans to visit up to three months.  The review applicant explained that she is only able to take three weeks off work during the visa applicant’s planned visit, but that the visa applicant hopes to spend more time here with other relatives.  The review applicant said her cousin will stay with her and her family at their home and she will pay for the visa applicant’s visit.  The review applicant said that she and her husband own and manage a nail salon business in Geelong and provided financial statements to the Tribunal.  The Tribunal accepts her evidence about the purpose of the visit and plans.  It also accepts the review applicant’s has the financial means to pay for the visa applicant’s planned visit.

14. According to the review applicant’s oral evidence to the Tribunal her cousin is around 30 and lives with her husband, two teenage children and her parents-in-law in a house they own in Hue, central Vietnam.  In terms of work, the visa applicant and her husband own and operate a shrimp farm.  Her husband will manage the farm during her absence, which coincides with their summer period which is quiet.  They also have staff that can help out if needed.  The review applicant said the visa applicant’s parents – who are divorced – live in Vietnam as does her sister, her sister’s two children, her five half siblings and other extended family members.  The visa applicant has a number of aunts, uncle and cousins who live in Australia, which can act as an incentive for her to remain here.  However the presence of her immediate family, parents, sister, nieces and nephews and other extended family along with her work commitments do, in the Tribunal’s view, act as a significant incentive for her to return to Vietnam before the expiry of any visitor visa that may be granted. 

15. Initially the Tribunal had some concerns that the visa applicant may have intended to visit Australia to care for the review applicant’s child while the review applicant continues to work, which would be in breach of a condition of the visa not to work.  However according to the review applicant she sold two of her nail salon businesses after the birth of her son, and currently works two days a week at her remaining business whilst her husband looks after their son, who is now 15 months old.  Her son also attends childcare one day a week.  The Tribunal found the review applicant a credible witness and accepts her evidence in this regard.  It accepts that the review applicant wants the visa applicant to visit only, not to look after her child, and that she would ensure that the visa applicant abided by the relevant visa conditions.

16. The review applicant gave evidence that she has sponsored other relatives to visit Australia and they all have returned to Vietnam before the expiry of their visitor visas: specifically her aunt on one occasion in 2008; her uncle on three occasions in 2008, 2010 and 2017; and another cousin in 2009.  The Tribunal gives significant weight to the fact that the review applicant’s relative’s history of abiding by visa conditions has been strong. This also includes the visa applicant herself visiting Australia in 2008 and returning before the expiry of her visitor visa.

17. 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

18. 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.

    Nicole Burns
    Member