Le (Migration)

[2018] AATA 5625

Le (Migration) [2018] AATA 5625 (19 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mrs Huong Thi Le

VISA APPLICANT:  Mr Thanh Ha Le

CASE NUMBER:  1722642

HOME AFFAIRS REFERENCE(S):           05002824

MEMBER:Mary Urquhart

DATE:19 November 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 for a 3 month period:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 19 November 2018 at 11:57am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting married daughter and son and other family – past compliance with visa conditions – incentive to return to home country – dependent son in Vietnam – business and assets – decision under review remitted

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 20 September 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 25 August 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 there was sufficient evidence that the visa applicant intend to genuine temporarily visit Australia.

5. The review applicants appeared before the Tribunal on 8 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Xuan Hai Nguyen and from the applicant Mr Thah Ha Le by telephone in 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. This review was heard in a combined hearing with application 1726192.

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

10. 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)).

11. The applicant has previously visited Australia and complied with visa conditions. The Tribunal gives weight to his previous compliance.

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

    ·8101 – must not work in Australia

    ·8503  (may be imposed) – 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 visa applicant Mr Thanh Ha Le is a national of Vietnam. He is aged 49. He is married. He has three children. Two children of the applicant now reside permanently in Australia.  He wishes to visit his married daughter and son and other family in Australia for a period of 12 months. His wife Mrs Pham has also applied to visit Australia for 12 months. The application made on 20 September 2017. His younger son lives with him and his wife in Vietnam is aged 16 and is at school.

14. The review applicant Ms Huong Thi Le is the only daughter of the applicant. She is married to Mr Xuan Hai Nguyen. Her evidence is that in April 2016 she and her husband purchased a new home and invited her parents to visit. They came in November 2016. They have always visited Australia together. They stayed 3 months returning home in February 2017. The review applicant submits that 3 months “seems like a long time, (however) spending time with family is never enough”.  She has invited the applicant and her mother to come again and to stay for a longer period.

15. At the hearing clear evidence was given by the parties that they felt “penalized” for ticking the box for a 12 month visit in their applications. They gave evidence they would be pleased to accept any shorter period deemed appropriate by the Tribunal. For the reasons that follow and taking this into account the Tribunal is prepared to allow a visit of 3 months noting past adherence to visits of this duration.

16. There is no information before the Tribunal suggesting that the visa applicant would engage in any work, study or training in Australia.  Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa conditions 8101 and 8201.

17. The review applicant explained that she and her husband are undergoing preliminary procedures in relation to their desire to conceive a child. The procedures are a preliminary step for IVF treatment. She gave detailed evidence including the names of her treating doctors, consultations and ongoing treatment. Her husband confirmed the evidence. He said they have been married some 10 years and have been trying to start a family for some years. They both are of the view that the applicant’s parents spending time here would provide moral support to the review applicant.

18. The applicant expressed his view that he missed his children in Australia and wished to also spend time with his son. As well evidence was given that the applicant will perform a Blessing in accordance with Vietnamese culture on their new home. The Tribunal found their evidence to be a credible reason for inviting the applicants.

19. Family remaining in Vietnam include a dependent son, Le Huu Hoang, in year 11 at school. The applicant has provided evidence of a term deposit in the sum of 4 Million dong and other documents which show a history of transactions and balances indicating there is money to provide for the applicant’s dependent son whilst away and for his own visit. As well financial assistance will be provided by family in Australia to the applicant.

20. The evidence is that the applicant’s youngest son lives with his grandfather and has two aunts next door to look after him if the applicant is granted a visa. The Tribunal notes this has been the arrangement before and has worked in the past. The Tribunal is satisfied that the younger son will be provided for during a shorter stay by the applicant.  It is claimed this close family member will provide an incentive for the applicant to return home at the end of any visit. The Tribunal accepts the applicant’s youngest son provides a strong inducement for him to return home at the end of any visit and that his presence in Vietnam outweighs the temptation of remaining in Australia with two older married children.

21. The applicant gave evidence that he is a photographer. He claims to own a Cameraman business which he has operated with his wife for some 28 years. It is claimed the business is an incentive that will ensure the applicant returns home at the end of any visit. The evidence is that the photography business is “only” a small business and employs only one person Mr Tu Vo who will attend to any urgent work if required as he has done during the applicant’s previous trips to Australia. However, there is also evidence that the 16 year old son in Vietnam also helps out with the business. The Tribunal accepts this evidence and finds the Camera Business provides an incentive for the parties to return home at the end of any visit.

22. The applicant claims to own his own home and has provided documentation regarding Land use rights. Whilst the claimed assets are liquid, in that land is easily transferable and money in the bank can be drawn upon and moved, the Tribunal, nevertheless, gives weight to these in the applicant’s favour.

23. The Tribunal accepts the stated evidence that all parties are fully aware of the rules and regulations set out on the Visitor (Class FA) Visa and have always complied with these rules and regulations in the past and will continue to comply with them in the future or they would risk putting all future family travel in jeopardy. 

24. The review applicant raised with the Tribunal that she would be willing to guarantee her parents return by providing a bond if required to do so. However the applicant is not sponsored and a bond is not a requirement.

25. As the stay period granted may be less than the period requested and as the Tribunal notes the applicants and review applicant all agreed they would accept whatever ruling the Tribunal made in terms of the period of any visit granted  the Tribunal is satisfied that a visit for the period of 3 months is in all the circumstances appropriate.

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

27. 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

28. 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 for a 3 month period:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Mary Urquhart
    Member