Le (Migration)

[2018] AATA 2639

Le (Migration) [2018] AATA 2639 (4 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Phuong Thi Ngoc Le

VISA APPLICANT:  Mrs Hieu Thi Ngoc Le

CASE NUMBER:  1710420

DIBP REFERENCE:  BCC2017/1441884

MEMBER:Rosa Gagliardi

DATE:4 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 04 June 2018 at 3:10pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Whether the applicant genuinely intends to stay in Australia temporarily – Strong incentives to return to home country – No adverse family migration history – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.212, 600.231, 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 5 May 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 19 April 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 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 because he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

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 her sister, the applicant from Vietnam over the phone.  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 her sister, the review applicant.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Background

9. In her submission to the Tribunal, the review applicant wrote that at the time (20 May 2017) she was pregnant with her second child and that she was a single mother of an eight year old as well.  The review applicant wrote that learning of the pregnancy had stressed her because of her circumstances where she has little help to care for her children.  She worked 6 days a week and undertook the lengthy drive to her work in Ballarat from her home in Roxburgh Park.  The review applicant owns a nail and beauty salon in Ballarat where she has been working with her younger sister. 

10. Her younger sister has been having difficulties due to a divorce and because she was a victim of family violence, however, she continued to go to work to ensure the review applicant could continue to keep her business open.  The Tribunal has seen extensive information regarding the review applicant’s (and the applicant’s) sister’s mental health difficulties.  She also lives with the review applicant and the review applicant is providing her with employment, shelter and general emotional support.

11. The review applicant explained that she had no other employees apart from her sister and that running her business had now become very difficult because she had to ask others to take her eight year old to school and to pick him up.  She stated that she intended to bring her baby after he was born to her workplace when he was two months old and that is why she needed her sister’s assistance for a short time. 

12. The review applicant has now had her child.  The applicant is still interested in visiting her sister to help out with her children and to provide support to her other sister. 

    cl.600.211(a)

13. 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)).

14. The applicant is a married 42 year old woman.  She has a daughter who is 21 years of age and another who is 13-14 years of age.  The applicant has never previously travelled to Australia.  The Tribunal places some adverse weight on this matter but notes that the applicant’s extended family has had a history of visiting Australia without incident:

    ·A sister travelled to Australia on 21 July 2008;

    ·Another sister travelled here on 1 April 2011; and

    ·The applicants’ parents travelled to Australia on two occasions: on 8 March 2013 and then again on 25 March 2016. 

15. The Tribunal considers that the applicant’s family has already invested in travelling to see their daughter and their sister in Australia.  Given the review applicant’s circumstances whereby she has two young children to raise on her own, including a business, it is not likely that the review applicant will be able to travel to Vietnam frequently to maintain contact with her family overseas.  The Tribunal places significant weight on the review applicant’s credibility that her family want to maintain a positive migration history with the department to ensure she can keep seeing her family from Vietnam in Australia. 

16. The Tribunal considers that the review applicant’s family has a strong history of travelling to Australia and of adherence to the conditions as read to the applicant at hearing.  From the information on file, the Tribunal does not have any information that the applicant’s profile is any different from her sisters who have travelled to Australia previously.

    cl.600.212

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)). 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.

18. The Tribunal has had regard to the extensive and credible information the applicant has submitted regarding her financial and personal circumstances, which have satisfied the Tribunal that the applicant will not breach the conditions imposed on her visa, over and above the fact that her family history’s compliance on past Visitor visas has been positive.

19. The applicant is working as a cleaner, a self-run business whereby she attains work through the recommendations of friends and people in their network.  She also derives income from her cleaning jobs at Education Path Co. (since 2014) and Chieu Nguyen FCS Company (since 2016) where she is employed on a regular basis.  The applicant has provided evidence of her income being 5,500,000 VND per month for Chieu Nguyen FCS Company and VND 5,000,000 per month for Education Path Ltd.

20. Her husband is a driver for a company and takes on extra shifts on weekends and the evenings.  They have a house in Ben Luc District, Lon An Province which is leased and which earns rental of VND 9,000,000 per month.  Evidence of a lease agreement has been submitted for that property on Phan Van Mang St, Ben Luc.  While the land on which the house was built was inherited from the applicant’s father-in-law, she and her husband had saved to build the house and she was currently waiting for the Certificate of Ownership Registration, nonetheless, a construction permit has been submitted for the address, together with Land Use Rights of Certificate and evidence of the inheritance of land.

21. In addition, the applicant and her husband own their own home in Ho Chi Minh City.

22. The applicant has also provided evidence of term deposits with a total of VND93,728,099.00, the equivalent of roughly AUD5,398.00.  In another account the applicant has provided evidence of holding the equivalent of US4,453.96.

23. The Tribunal is satisfied from the evidence that the applicant’s financial circumstances in Vietnam are reasonably sound and that she would not be coming to work in Australia.  The Tribunal accepts that she genuinely wants to provide support to her sisters, particularly the review applicant to relieve her of some of the stress associated with organising her older child for school.  The Tribunal is also satisfied, given the applicant’s age, she is not attempting to come to Australia to study with an intention of achieving a long-term migration outcome.

24. It is also difficult to see, outside of a student visa, what other visa the applicant could apply for in Australia.  There does not appear to be any indication that her marriage is other than solid and long-term and the Tribunal is satisfied that she is not coming to Australia to change her status onshore.  Similarly, the Tribunal is satisfied that the applicant is not intending to become an unlawful non-citizen as it would be difficult for her to survive in the community without English language skills.  Furthermore, the Tribunal also places weight on the fact that the applicant does have at least one dependent child in Vietnam who along with her husband and other daughter represent a strong incentive for her to return to Vietnam on expiry of her visa.

    cl.600.211(c)

25. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal notes that the Department was concerned that the applicant had indicated in the application that she wanted to stay for 6 months.  The review applicant and the applicant explained at hearing that the applicant had no intention of staying for 6 months in Australia.  It would probably be in the vicinity of 1 or 2 months given the applicant’s work and family commitments in Vietnam.  The review applicant indicated at hearing that she ticked 6 months on the application form simply because it was an option, but it did not reflect the applicant’s intention.   Indeed past visits by family to Australia have consistently been for less than 6 months.

26. The Tribunal notes that this is a Sponsored Family category of Visitor visa and that a security will be required to ensure compliance with the above conditions and this has also given the Tribunal confidence that the applicant is highly motivated to return to Vietnam on expiry of her visa. 

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:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    Member