LE (Migration)

[2018] AATA 2486

LE (Migration) [2018] AATA 2486 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs VAN ANH THI LE

VISA APPLICANT:  Mr LIEM THANH LE

CASE NUMBER:  1709107

DIBP REFERENCE:  BCC2017/1113125

MEMBER:Rosa Gagliardi

DATE:5 June 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 05 June 2018 at 12:08pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Whether the applicant genuinely intends to stay in Australia temporarily – Limited ties to home country – Strong family history of compliance with visa conditions – Strong incentive to maintain family history of compliance – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, Schedule 8, Conditions 8101, 8201, 8503, 8531

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 April 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 23 March 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, mostly because the applicant is single and of working age and did not have significant savings.

5. The review applicant appeared before the Tribunal on 4 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr Jaison Colby Garwood and from the visa applicant by phone overseas.  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 visiting his sister and her family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. The Tribunal notes that at the time of application there were concerns that the applicant had not provided official evidence of his relationship as the review applicant’s sibling.  In addition to the household registration documentation, the applicant has now submitted a copy of his birth certificate and that of the review applicant showing that they share the same parents.  The Tribunal is satisfied that the applicant and the review applicant are siblings as claimed.

   Background

10. At hearing the review applicant explained that in her family she was the only person residing in Australia.  The Tribunal gained the impression that the review applicant is close to her family and finds being separated from them difficult, even though she has been in Australia for over ten years now.  The review applicant came to Australia on a Partner visa and is married to an Australian national by birth, Mr Jaison Colby Garwood, who works as a gardener.  They have two children.  The review applicant stated that she and her family would find it difficult to travel together to see her family and that it was more convenient for her brother to travel to Australia.  The applicant only wishes to stay in Australia for three weeks.

11. The Tribunal recognises the Department’s concerns that the applicant is not married and that this Visitor visa does not have a security requirement, even though Mr Garwood stated at hearing that that would be provided if necessary.  The applicant has claimed that he has a love interest in Vietnam.  He is 27 years of age and has no dependents.  His work is as a Head Bar Tender but at hearing stated that he was going to open a café of his own in Vietnam.  He was in the early stages of preparing the facilities.  The Tribunal considers that the applicant’s circumstances of themselves might weigh against a favourable finding.  Nonetheless, the Tribunal considers that some weight also needs to be placed on other factors that involve the credibility of the review applicant and her husband in their undertakings that they would ensure that the visa applicant would not work and does not wish to work in Australia.  In making its decision the Tribunal has also taken into account other considerations that point to the applicant having a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted as set out below.

    cl.600.211(a)

12. 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)).

13. The applicant has never travelled to Australia.  Nonetheless, the review applicant’s family has a strong history of travel to Australia and compliance with their visa conditions.

14. The review applicant explained that when she was married in 2010 her parents came to Australia to attend her wedding.  Then her mother also returned to Australia in 2012 on the birth of her first child and in 2015 both parents travelled to Australia on the birth of her second child.  These are all matters that the Department will be able to independently verify.

15. Given that it is difficult for her entire family to travel overseas to see her parents and sibling the applicant stated at hearing that her brother would not risk breaching his visa conditions because it would mean that her family would have an adverse history and seeing her family would become much more difficult. 

16. The Tribunal places weight on the review applicant’s family’s history of travel to Australia and accepts that the visit from her brother is no more than an extension of her family’s intention to continue a pattern of travel to Australia to be able to spend time with the review applicant and her family.  The Tribunal also relies on the review applicant’s statements that her family was law abiding and had no intention of contravening Australia’s immigration laws.

    cl.600.211(b)

17. 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)).

    ·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.

18. The applicant has consistently stated that he only wishes to stay in Australia for three weeks and given the store the Tribunal has placed the credibility of the review applicant, her husband and the applicant, the Tribunal accepts this to be the case.

19. The applicant has provided a copy of his work contract confirming his status as the Head bartender at the Nha Hang Luna Pub.  The contract appears to be open ended. The contract states that he earns VND 8,000 per month with the potential for upward revision of salary and the possibility of additional allowances.  The contract shows that employees are paid in cash, therefore it is not possible for the applicant to be able to demonstrate an income stream as would be expected for an employee who has earnings deposited directly into a bank account.

20. The Company Director of Luna Pub where the applicant work has provided a letter dated

    
    

    15 March 2017 indicating that the applicant had started working at the Pub from 4 November 2015 with an acknowledgement that the applicant would be away for around three weeks on holiday at that time. 

21. The applicant rather presumptuously purchased his tickets on several occasions for several weeks stay in Australia even before the Department had assessed the visa application.  This is not a practice that is encouraged because as occurred in this case, an outcome may not always be positive, even on review.  Nevertheless, the purchase of tickets with return dates, in light of other credible evidence before the Tribunal, lends weight to the applicant’s credibility that he intends to return to Vietnam at the end of his visit.

22. The Tribunal has also had regard to the applicant’s savings which amount to VND 210,000,000.00 which is equivalent roughly of AUD12,064.  The Tribunal accepts that these funds are the applicant’s personal savings as he lives with his parents and has few recurring financial commitments.  The Tribunal is satisfied that such funds would adequately cover the applicant’s costs in Australia, although the Tribunal also accepts that the review applicant and her husband are earning an income and that between them they would be able to provide for any unforeseen circumstances should they arise.  Both have submitted evidence of their earnings.

    cl.600.211(c)

23. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  A different set of circumstances may have produced a different result for someone of the applicant’s profile.  Nonetheless the Tribunal has placed weight on the review applicant’s parents’ previous travel to Australia and their compliance with their conditions, as well as the compelling nature of the evidence given at hearing by the review applicant and her husband,

    
    

    Mr Garwood.  The review applicant in particular is conscious that she does not wish to jeopardise her other family members travelling to Australia by having the applicant breach his visa conditions.

24. 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

25. 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.

    Rosa Gagliardi
    Member