Le (Migration)

[2020] AATA 3027

Le (Migration) [2020] AATA 3027 (18 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ashleigh Bach Mai Le

VISA APPLICANT:  Ms Thi Giac Pham

CASE NUMBER:  1836690

HOME AFFAIRS REFERENCE(S):          BCC2018/4381964

MEMBER:Joseph Lindsay

DATE:18 May 2020

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 18 May 2020 at 4:13pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – visa applicant is primary carer for elderly mother – inheritance of family property in Vietnam – previous compliant visits by family members – review applicant is a legal practitioner in Victoria – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 15 November 2018 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 9 October 2018. 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 14 May 2020 to give evidence and present arguments. The visa applicant did not attend the hearing.

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 purpose of visiting her niece in Australia (the review applicant). 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. In the hearing, the review applicant advised the Tribunal that the visa applicant has never been to Australia. Accordingly, there is no issue as to whether the visa applicant has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa, and the Tribunal gives this issue no weight.

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. In the hearing, the review applicant gave evidence to the Tribunal about the visa application.

14. The review applicant explained that her aunt is her mother’s sister, and her aunt had never applied for a visa to come to Australia before.

15. The review applicant explained that the original intent was for her aunt to travel from Vietnam to Australia to attend her sister’s wedding. The review applicant explained that the wedding has already happened, and took place on 2 January 2020 in Victoria.

16. The review applicant explained that three other guests from Vietnam attended the wedding and all returned back to Vietnam.

17. The review applicant explained that her aunt had essentially given up her life to look after her parents (the review applicant’s grandparents). The review applicant explained that her grandfather had passed away but that her aunt, who never married, looked after her grandmother and indeed that her aunt and grandmother lived together.

18. The review applicant explained that she still would like her aunt to visit her and her family in Australia for about 3 to 4 weeks and then return to Vietnam.

19. The review applicant explained her aunt worked in a business that she had started with the review applicant’s mother (her aunt’s sister) where she sells village produced goods.

20. The review applicant explained that she herself was born in 1979 and that her father originally came to Australia as a refugee. The review applicant explained that her father then sponsored her mother, elder sister and herself to come to Australia in 1989. The review applicant explained that she has lived her life in Australia since then and she is an Australian citizen.

21. The review applicant explained that she herself is a corporate lawyer and she worked at Gadens for five years as a lawyer and is now working at Grillo Higgins. The review applicant explained that her husband is an orthopaedic surgeon, De Juan Ng, who works at St Vincent’s Private and Valley Private and Dandenong hospital.

22. The review applicant explained that she and her husband have a big house and are financially able to fund her aunt’s expenses. The review applicant explained that she is currently home schooling her children but that she would take time off to spend with her aunt.

23. The review applicant explained that she has herself visited her aunt in Vietnam many times and she last saw her aunt when her grandfather passed away two years ago. The review applicant explained that she stayed with the family in My Tho.

24. The review applicant explained that her aunt would absolutely return to Vietnam because she is devoted to caring for her grandmother. The review applicant explained that her aunt is her grandmother’s primary carer and her grandmother is dependent on her aunt.

25. The review applicant explained that her grandfather left her aunt a huge amount of land in the will, and that her aunt is the sole owner of the land. The review applicant explained that her aunt has an emotional connection to the land because her father built up the property after his time as a prisoner of war in the aftermath of the Vietnam War. The review applicant explained that her aunt would never leave Vietnam or the land for long because there was a concern that the Vietnamese authorities may attempt to compulsorily acquire the land if her aunt was away for too long. The review applicant explained that there is no chance that her aunt would ever allow such a situation to occur.

26. The review applicant explained that her aunt has never been married, and has never been a housewife, and she does not know why that would have ever been mentioned. The review applicant referred to updated documentation provided to the Tribunal.

27. The review applicant explained that she had herself sponsored other family members to visit Australia before and that on all occasions all have returned to Vietnam. The review applicant explained that her mother has also sponsored other people to visit and they too have gone back.

28. The review applicant explained that she is a legal practitioner who is admitted to the roll of practitioners in Victoria, and that she understands that legal practitioners are held to a higher standard, especially when they give evidence under affirmation, and there are serious consequences for not meeting these standards. The review applicant explained that her parents had given up a lot for her and she would never do anything to impact on her reputation or legal career.

29. The review applicant explained that this situation was very emotional for her because her auntie had given up everything for her family and to look after her grandparents. 

30. The review applicant explained that when she was getting married, her grandfather was very sick and her aunt did not want to leave her grandfather, and so did not attend the wedding.

31. The review applicant explained that now that her grandfather had passed way, she wanted to take the opportunity for her aunt to come and see them in Australia.

    Findings

32. The Tribunal has considered the documentation provided as well as the submissions made in the hearing. The Tribunal finds that the review applicant provided credible information in respect to the review application and finds she was a credible witness.

33. The Tribunal accepts:

    ·The review applicant’s aunt (the visa applicant) is her mother’s sister, and her aunt had never applied for a visa to come to Australia before.

    ·The visa applicant’s original intent was to travel from Vietnam to Australia to attend her niece’s wedding, however the wedding has already taken place, on 2 January 2020 in Victoria.

    ·Three other guests from Vietnam attended the wedding and all returned back to Vietnam.

    ·The visa applicant has essentially given up her life to look after her parents (the review applicant’s grandparents), however since the review applicant’s grandfather passed away the visa applicant, who never married, has looked after her grandmother and also lives with her grandmother.

    ·The review applicant would like her aunt to visit her and her family in Australia for about 3 to 4 weeks and then return to Vietnam.

34. The Tribunal accepts that the visa applicant has strong reasons to return to Vietnam due to her caring responsibilities for the review applicant’s grandmother. The Tribunal also accepts that the visa applicant is a substantial landowner who has a strong sentimental attachment to the property.

35. The Tribunal accepts that there is a history of other sponsored family members visiting Australia before and that on all occasions they have returned to Vietnam.

36. The Tribunal accepts that the review applicant is a corporate lawyer and her husband is an orthopaedic surgeon, De Juan Ng. The Tribunal accepts that the review applicant understands that she is a legal practitioner in Victoria, and that she understands that legal practitioners are held to a higher standard, especially when they give evidence under affirmation, and there are serious consequences for not meeting this standard.

37. 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

38. 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.

    Joseph Lindsay
    Member