MAC (Migration)

[2018] AATA 4918

MAC (Migration) [2018] AATA 4918 (25 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Giao Thiep MAC

VISA APPLICANTS:  Mrs Thi Thanh Van Mac
Mrs Thi Diep Mac

CASE NUMBER:  1810561

HOME AFFAIRS REFERENCE(S):           BCC2018/63119

MEMBER:Frances Simmons

DATE:25 October 2018.

PLACE OF DECISION:  Sydney

DECISIONS:  The Tribunal remits the application for Visitor (Class FA) visas for reconsideration, with the direction that the second named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in respect   of the first named applicant.

Statement made on 25 October 2018 at 6:40pm

CATCHWORDS

MIGRATION –Visitor (Class FA) – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – second named applicant’s trip to visit parents – review applicant unable to travel overseas due to heath – willing to provide security bond – care arrangements for parents discussed – visa applicant’s husband and children in Vietnam – decision under review remitted for reconsideration

PRACTICE AND PROCEDURE – no juristiction for first named applicant – combined application unavailable

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359AA

Migration Regulations 1994 (Cth),r 4.12 Schedule 2 cls 600.211, 600.221, 600.222, 600.224

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 28 February 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 6 February 2018. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl.600.211 because the delegate was not satisfied that the visa applicants genuinely intended to stay in Australia temporarily for the purpose for which the visa was granted.

5. The review applicant appeared before the Tribunal on 15 October 2018 via telephone to give evidence and present arguments. The Tribunal elected to conduct the hearing via telephone because it was apparent from the medical evidence on file that the review applicant is elderly with limited mobility.

6. The Tribunal also received oral evidence from visa applicant. The Tribunal also heard from the review applicant’s son, Mr Van Mac, and daughter, Ms Jessica Mac, both of whom are Australian citizens who are resident in Australia. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration with the direction that the second named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa: cl.600.211 of Schedule 2 to the Regulations.

8. The Tribunal does not have jurisdiction in respect of the second named visa applicant.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Jurisdictional issue

9. The visa applicants are the daughters of the review applicant and reside with their respective families in Vietnam. The visa applicants made separate offshore visa applications (Tourist stream) to the Department.

10. The applications were not sponsored and the delegate refused both. On 15 April 2018 the review applicant lodged one application for review which included all the visa applicants and paid one review application fee.

11. Regulation 4.12 sets out the circumstances under which applications for review may be combined. Under the Regulations a combined application is possible if permitted under Schedule 1 of the Regulations or under r.2.08; which relates to children being born before the primary decision is made.

12. Based on the evidence before it, the Tribunal finds that the Regulations do not make provisions for combined visitor visa applications in the present case.

13. The review applicant indicated that he wanted to proceed with the review of the second named visa applicant (the visa applicant).

14. The Tribunal finds that it does not have jurisdiction in respect of the first-named visa applicant.

    Summary of evidence before the Tribunal in relation to the visa applicant

15. The Tribunal has considered the evidence on the Tribunal file and the Departmental files. The Department file in respect of the visa application the subject of this review, contains a document headed “Certificate and Notification Regarding the Disclosure of Certain Information Only to the Migration Review Tribunal Under s375A of The Migration Act 1958”. The Tribunal has reservations about the validity of this certificate. However, because the Tribunal does not consider the document that is purportedly covered by the certificate contains any probative evidence that would be the reason or part of the reason for affirming the decision under review, the Tribunal did not put that information to the review applicant pursuant to section 359A or 359AA of the Act.

16. According to the visitor visa application, the visa applicant was born in Vietnam on 17 September 1958. She provided copies of her birth certificate, passport biodata page, and marriage certificate with her application. She lives with her husband, who was born on 19 August 1953, in Tuyen Quang province in Vietnam.  She has two children: a son born on 10 June 1983 and a daughter born on 24 December 1985. Before the Tribunal she gave evidence that she has four grandchildren: two grandchildren live with her and their parents and two other grandchildren live nearby with their parents. She has declared that she is retired after many years working in retail.

17. According to the visitor visa application, the visa applicant wants to visit to Australia to see her parents and attend a family reunion. The visa applicant proposed to travel to Australia with the first named applicant for one month. She also stated she may wish to return to Australia after her first entry for ‘very important occasions such as the death of a family member’. The visa applicant declared that her parents and six of her nine surviving siblings reside in Australia[1] and that they are willing to provide her with accommodation and financial support whilst she is in Australia.

    [1] Copies of the bio data pages of the passports of the siblings’ resident in Australia appear on the Departmental file and copies of their drivers’ licenses were also submitted to the Tribunal.

18. The visitor visa application was accompanied by a statutory declaration dated 20 December 2017 from visa applicant’s father (the review applicant). This declaration states that the review applicant and his ex-wife are in poor health and no longer able to travel and that they wish to have their daughters visit Australia for a family reunion. The visa application was also accompanied by documentation indicating the visa applicant and her husband own property in Vietnam. She also provided a bank statement showing she has fifty million Vietnamese dong ($AUD 3000) in a term deposit and bank statements belonging two of her siblings in Australia as evidence of their capacity to support the visa applicant.

19. The Tribunal received further evidence from the review applicant including: written submissions addressing the concerns raised in the delegate’s decisions to refuse to grant the visa applicants’ visas, bank statements for the review applicant showing evidence that he is in receipt of a pension; a certificate of land ownership in the name of the visa applicant and her husband; household registration details for the visa applicant, her husband, her daughter-in-law and grandchildren; a medical certificate certifying the visa applicant’s mother suffers from hypertension, osteo-arthritis of the spines and knees, and mild dementia.   The review applicant also produced household registration records (and translations thereof) that are consistent with the visa applicant’s evidence about her marital status, residence and relationships in Vietnam, and which also record that she is retired.  

20. In the written submissions[2] the review applicant writes that his family is not rich, but there are a number of them in Australia. If they have to put together a bond as security, they will do so. Everything will be provided by their family during his daughter’s stay. The time they have left is fragile and precious and they wish to see their children. If you are a parent you will know the feeling of panic when you turn around and you do not see your child where they should be. It has been years since he has held his daughters and now the panic he feels is that we will not be able to see his daughters before he disappears.

    [2] The submissions address the specific circumstances of both the visa applicants but, as the Tribunal only has jurisdiction in relation the second named applicant, the Tribunal has only considered the submissions as they are relevant to its assessment of whether the second named applicant meets 600.211. 

    Issue on review in relation to the visa applicant

21. 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.

22. In the present case, the visa applicant seeks the visa for one month for the purpose of visiting her elderly parents and reuniting with family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

23. 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)). On the evidence before it, the Tribunal finds that the visa applicant has never held any type of visa for Australia. Therefore there are no relevant considerations pertaining to cl.600.211(a).

24. The sponsorship requirement in the Tourist stream applies only if the applicant intends to visit certain kinds of relatives, and if the Minister has required the applicant (and each other applicant who is a member of the applicant's family unit, or in relation to whom the applicant is a member of the family unit) to be sponsored by a specified Australian relative under cl.600.224(1). This capacity of the Minister to request sponsorship is intended to provide additional flexibility in relation to applicants who may otherwise not meet the visa criteria (see Explanatory Statement to SLI 2013, No. 32, p.18). One effect of requiring sponsorship is to engage the security requirement criterion in cl.600.225.

25. The review applicant indicated he is willing and able to provide a security if requested. The delegate did not a sponsorship under cl.600.224 in the present case.

26. The review applicant has indicated to the Tribunal that he is prepared to sponsor the visa applicant and is willing to provide a security to ensure compliance with the visa conditions. Based on the evidence before it, the Tribunal is satisfied that the review applicant is willing and, with the support of his children in Australia, able to provide a financial security if requested. The Tribunal has discretion to require a sponsorship in accordance with cl.600.224(1) and in the circumstances of the present case, considers it appropriate to do so. On this basis, the applicant meets cl.600.224(1).

27. The Tribunal will leave it to the visa applicant to make arrangements to provide the sponsorship as required to meet cl.600.224(2) and to the Department upon remittal to consider whether to approve the sponsorship  as made (cl.600.224(3)).

28. Having determined to require the visa applicant to be sponsored, 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)).

29. 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.

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

31. The Tribunal finds that the review applicant is an 87 years old Australian citizen. He first arrived in Australia from Vietnam in 1992 and he has returned to Vietnam on multiple occasions most recently in July 2015.[3] The medical evidence before the Tribunal indicates that he is frail, largely confined to his house, and his health is deteriorating. He suffers from acute osteoarthritis, asthma, has Chronic Obstructive Pulmonary Disease, heart valve issues, and other health ailments. In recent years he has been in and out of the emergency department numerous times as he is breathless and is in pain.[4]

    [3] Departmental movement records.

    [4] Tribunal file, folio 66.

32. The review applicant’s ex-wife is a 78 year old Australian citizen. The review applicant states that they are separated but still close friends as they are bound together by the love they share for their ten children, the eldest of whom has now passed away.  His ex-wife is still mobile but shows early signs of dementia. He has not seen his two daughters since 2015 as his deteriorating health means that he is no longer able to travel to Vietnam to see them as he used to do. One daughter is travelling to Australia from London in October 2018; he would love for his other two daughters from Vietnam to be able to visit as well. It is in these circumstances that his daughters have applied for visitor visas. He told the Tribunal that his daughters have their own lives in Vietnam and their own family responsibilities and therefore they have no interest in migrating to Australia.

33. The Tribunal accepts that the visa applicant is a Vietnamese citizen of the Kinh ethnicity and the Buddhist faith. On the evidence before it, the Tribunal accepts that the visa applicant is the daughter of the review applicant. The Tribunal accepts that the review applicant and his ex-wife are elderly and suffer from the medical conditions detailed in the medical reports submitted to the Tribunal. The Tribunal accepts that they are unable to travel overseas to visit their daughters and grandchildren in Vietnam as they used to do. The Tribunal accepts that six children of the review applicant’s nine surviving children are Australian citizens. Another child is resident in London and two other children – the visa applicants – are resident in Vietnam.

34. The Tribunal accepts that the visa applicant wants to visit her elderly parents in Australia. The visa applicant told the Tribunal that last time she saw her father was in Vietnam in 2015 and he was very frail.  She wants to visit her parents while they still remember her. The Tribunal accepts that the visa applicant’s parents are frail and their health is deteriorating. It is understandable that she wishes to visit her parents. The period of proposed travel – one month – is consistent with this purpose. It is also reasonable, in the circumstances where the visa applicant’s parents’ are elderly and their health is deteriorating, that the visa applicant indicated on the visitor visa application form that she may wish to visit Australia on future occasions, including for significant events such as funerals.

35. The Tribunal accepts that the visa applicant wants to visit Australia to see her father, the review applicant, and her mother and to reunite with parents and siblings. The Tribunal accepts, based on the consistent evidence of the parties, that she is married and lives with her husband, her son, daughter-in-law and two grandchildren. Her daughter and two other grandchildren live a few kilometres away. The Tribunal accepts that the visa applicant worked for most of her life in retail and retired a few years ago.

36. The Tribunal notes that the visa applicant has disclosed that she previously applied to travel to Australia on a visitor visa to assist her sister after the birth of her child. This application was refused. Her sister told the Tribunal that she had her child she did not have the time to apply for review of this decision and the time when the assistance was most needed had passed. While the visa applicant has no record of international travel, the Tribunal notes that in 2010 the first named visa applicant travelled to Australia and departed Australia before the end of her permitted stay in compliance with the condition of her visitor visa.[5]

    [5] Departmental movement records.

37. The medical records before the Tribunal confirm the visa applicant’s mother suffers from chronic hypertension, osteoarthritis, anosmia, mild cognitive impairment. According to these records she has reasonable community function but relies on the support of her family. The Tribunal was concerned that the visa applicant may wish to remain in Australia to help care for her mother as her health deteriorates. The Tribunal discussed these concerns with the review applicant at the hearing. The Tribunal raised with the review applicant that a medical record from 2017 indicated that a daughter was planning to move to Queensland and this would reduce the support available to the visa applicant’s mother from her family in Sydney. The same medical record also suggests that the mother might be able to obtain care from the visa applicant if she travelled to Australia from Vietnam. The review applicant’s son, Mr Van Mac, gave evidence this conversation with the doctor was a long time ago: his mother was anxious about her daughter moving to Queensland and told the doctor her other daughter was planning to visit from Vietnam. The eldest daughter now lives in Toowoomba but the review applicant and his ex-wife are still in Sydney.

38. After the hearing the review applicant provided identity documentation and the residential address of his children in Australia. On the evidence before it, the Tribunal accepts that the review applicant has six children in Australia (four of whom live in Sydney, one of whom now lives in Toowoomba in Queensland, and one of whom lives in Cowra in NSW).The Tribunal accepts that the review applicant’s children have discussed how to support their parents as their health deteriorates and that a proposal for the review applicant to move to Queensland did not eventuate. The evidence before the Tribunal indicates that that the review applicant and his ex-wife live separately and are well-supported by their children in Sydney.

39. When the Tribunal asked the visa applicant why she would return to Vietnam, she said she had her own family in Vietnam. She wanted to see her parents, but her own family was in Vietnam. The Tribunal accepts that the presence of the visa applicant’s husband, who is retired and in ill health, two adult children, and four grandchildren provide a significant incentive for her to respond to Vietnam before the end of the permitted stay. The Tribunal accepts that the visa applicant has significant family and social ties in Vietnam, the country in which she has lived all her life. The Tribunal was told the visa applicant has retired, does not speak English and will be accommodated and supported by her siblings whilst in Australia. The Tribunal notes that the second named visa applicant stated she would be willing to travel to Australia without the first named applicant.

1. The Tribunal acknowledges that the visa applicant has significant family ties in Vietnam that will motivate her to return to Vietnam before the end of her permitted stay. The Tribunal accepts that visa applicant’s sister, Mrs Thi Thanh Van Mac, will wish to visit her parents. Furthermore, as foreshadowed in her visa application, the visa applicant may wish to visit Australia again and, in time, she may wish to attend the funerals of her elderly parents. In this context, the Tribunal considers the visa applicant is well aware of the importance of complying with the conditions of any visa that is granted to her so as not jeopardise future applications.

2. There is no evidence before the Tribunal to indicate that the visa applicant has had any difficulties living in Vietnam that would deter her from returning there. There is no suggestion that she has difficulties for reasons of her religion or that she is engaged in political activity. The evidence before the Tribunal indicates she has a good relationship with husband, two children and four grandchildren. One grandchild is currently undergoing chemotherapy for a brain tumour and her husband suffers from various health conditions. The Tribunal accepts that she will be motivated to return to Vietnam to continue to support her family during this difficult time. While the visa applicant may wish to return to Australia on future occasions to see her parents or to attend significant family events such as funerals, this does not suggest that she will breach her visa conditions and remain in Australia beyond her permitted stay.

3. The Tribunal accepts that review applicant and his family will provide the visa applicant with accommodation whilst she is in Australia as they did for the first named applicant when she visited in 2010. Tribunal accepts that because she will be in receipt of such support there will be no need for her to work during her visit, which will be for duration of one month.  There is no suggestion she would engage in study whilst in Australia. Accordingly, the Tribunal is satisfied that the second named visa applicant would comply with conditions 8101 and 8201.

4. The Tribunal also accepts that if the review applicant were required by the Department to pay a security bond, as he has indicated he is willing to do, this would provide an additional incentive for compliance. Accordingly, the Tribunal has taken into account that the Department can require a suitable security as further incentive for visa compliance.

5. For the above reasons the Tribunal is satisfied that the second named visa applicant genuinely intend 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.

6. As noted above, the Tribunal does not have jurisdiction in respect of the first named applicant.

   DECISIONS

7. The Tribunal remits the application for Visitor (Class FA) visa for reconsideration, with the direction that the second named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

   · cl.600.211 of Schedule 2 to the Regulations.

8. The Tribunal does not have jurisdiction in respect of the first named visa applicant.

   Frances Simmons
   Member