Le (Migration)

[2018] AATA 5635

Le (Migration) [2018] AATA 5635 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Tran Ngoc Le

VISA APPLICANT:  Ms Anh Ngoc Le

CASE NUMBER:  1728411

HOME AFFAIRS REFERENCE(S):           BCC2017/3603846

MEMBER:Linda Holub

DATE:21 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 November 2018 at 3:19pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – incentive to return to home country – intention to comply with visa conditions – visa applicant did not participate in first hearing – review applicant did not attend second hearing – evidence available to the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 3 November 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 2 October 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 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 the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia for the purpose stated.

5. The review applicant appeared before the Tribunal on 26 September 2018 to give evidence and present arguments.  She was represented in relation to the review by her husband.  Although when the hearing invitation had been accepted, the visa applicant was expected to participate, at the hearing the Tribunal advised that she was travelling outside of Vietnam and was uncontactable.

6. A further hearing was scheduled for 19 November 2018 to enable the visa applicant to provide evidence.  However, the Tribunal received an email on 13 November 2018 stating that the review applicant would not be attending the hearing as the Tribunal’s assistance is no longer required.  The email referred to the Tribunal’s processing time as being unacceptable.  On 15 November 2018 the Tribunal wrote to the review applicant seeking clarification as to whether it was her intention to withdraw the review application.  No response was received and the review applicant did not attend the hearing.  In the absence of a formal withdrawal, the Tribunal proceeded to finalise its decision on the basis of the written documentation available to it and the oral evidence presented at the hearing of 26 September 2018.

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

BACKGROUND

1. The review applicant is the visa applicant’s sister.  She was born in 1984 and first came to Australia in 2013.  The visa applicant is a national of Vietnam born in October 1988. 

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

10) In the present case, the visa applicant sought the visa for the purposes of visiting her sister and to spend Christmas and New Year together.  At hearing the review applicant stated that the visa applicant may now only come for only three weeks and main reason is to see her mother- in-law and to do some sightseeing in Sydney.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

11) 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)).  The visa applicant has not previously travelled to Australia.

12) 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.600.611(2):

·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.

13) The review applicant does not work outside the home.  Her husband works as a mechanical engineer.  At hearing it was agreed that a copy of his pay slip would be provided to the Tribunal but it was not received.  The review applicant stated that she has a two bedroom apartment in Hanoi which was purchased approximately four years ago.  She agreed to provide a copy of the title deed of the apartment in Hanoi but did not dos so.  They have one car.  The review applicant’s husband gave evidence that he has $5,000 in his personal account and they have minimal funds in the joint account.  No evidence regarding their financial position was made available to the Tribunal.

14) In Australia the review applicant and her husband live with his family in a 5 bedroom house.  The Department file includes a letter of invitation from the visa applicant’s brother-in-law stating that the visa applicant will be living with them during her stay and that they will take responsibility for her during that time and for her departure at the end of her visit.  The letter was written on behalf of other members of his family including his mother, his brother and step-father.  A submission to the Tribunal states that some of these family members have visited the visa applicant in Vietnam and have a good relationship with her.  

15) Evidence was provided in relation to the visa applicant’s bank balance, which as at 28 December 2016 was Vietnamese Dong 500 million but no evidence was provided of a savings history.  The review applicant stated that she did not know if the visa applicant still had the same amount as she has travelled to Bali, Taiwan and Shanghai since that time.  When asked where the money came from, the Tribunal heard that her grandmother gave her some money and she saved.  It was noted that the visa applicant who lives in the review applicant’s Hanoi apartment, does not pay rent. 

16) Information provided to the Department states that from 2010 until 2014 the visa applicant worked as a sales person and from 2015 in an online sales role.  The Tribunal was provided with a letter from the visa applicant’s employer stating that she has been employed full-time since 5 September 2016 and that her role involved assisting with sales in the shop and online sales.  It states that she is expected to return after three months after departure.  The review applicant stated that the visa applicant earns $AUD 1,000.

17) In relation to the incentives for the visa applicant to return to Vietnam at the end of her visit, the Tribunal was provided with a letter from her employer stating the visa applicant is expected to return to her position after three months after departure.

18) Written evidence also provided to the Tribunal that the visa applicant had a boyfriend in Hanoi but at hearing the review applicant stated that the visa applicant’s boyfriend lives in Shanghai.  She was however unable to provide any further information, such as how long they have been in a relationship.  She stated that she and her sister speak often but not about the boyfriend.  She said they had stopped discussing the visa applicant’s relationships.  The review applicant stated that the fact of the visa applicant having a boyfriend is an incentive for her to return to Hanoi.  When asked how having a boyfriend in Shanghai is an incentive for her to return to Hanoi, the review applicant responded that the visa applicant is happy.

19) In relation to other incentives for the visa applicant to return to Hanoi, the review applicant referred to the applicant’s job and their brother and the apartment.  The Tribunal queried how her brother is an incentive or her to return, the review applicant stated that the visa applicant is close to their brother.  In relation to the apartment the Tribunal questioned how the apartment is as incentive for her to return given it belongs to the review applicant, the review applicant responded that she has promised the visa applicant that she can live there forever.

20) Condition 8503 refers to entitlement and does not require compliance.

21) Because the visa applicant did not participate in the first hearing and the review applicant did not attend the second hearing the Tribunal was unable to finalise its questioning and discuss certain issues with the visa applicant.  Furthermore, information sought by the Tribunal was not provided.  Therefore, on the evidence available to it, the Tribunal was not satisfied that the visa applicant would not work in Australia, or engage in study or training in Australia for more than 3 months, nor that she would return to home country after end of permitted stay.

22) 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

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

Linda Holub
Member