Mankarious (Migration)

[2023] AATA 3652

Mankarious (Migration) [2023] AATA 3652 (25 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Rafik Mankarious

VISA APPLICANT:  Ms Thuy Lien Mac

CASE NUMBER:  2209071

HOME AFFAIRS REFERENCE(S):          BCC2021/852238

MEMBER:Stephen Witts

DATE:25 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 25 October 2023 at 11:07am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visa applicant outside Australia at time of application and grant – Australian citizen children – APEC Business travel card – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.214, 600.412

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 Home Affairs on 9 June 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 14 January 2022. 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 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 (Cth) (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 600.412 because the delegate was not satisfied that the visa applicant was outside Australia at the time of application and at the time of grant.

5. The review applicant, Mr Mankarious, currently in Vietnam, appeared before the Tribunal on 25 October 2023 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant, Ms Thuy Lien Mac, currently in Australia.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl 600.214 is met which requires the Tribunal to be satisfied that the visa applicant is outside Australia at the time of application and outside Australia at the time of grant:

   Cl 600.412

   If the applicant is outside Australia at the time of application, the applicant must be outside Australia at the time of grant.

9. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

10. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision dated 9 June 2022 where it was asserted by the delegate that it was not satisfied that at the time of application that the visa applicant was outside Australia.

11. The Tribunal also notes that the review applicant provided it with a submission dated 10 September 2023 stating that he wished to provide more detail regarding the events leading to the initial visa application and subsequent appeal process noting that he wanted to provide an overview of the circumstances of his wife’s (the visa applicant) application and subsequent events.

12. The review applicant stated:

    “I am not contesting the decision to refuse the visa. It is true that my wife, Thuy Lien Mac (Lien), was present in Australia during the review dated 9 June 2022. She arrived in Australia 4th April and return to Saigon on the 11th June 2022.”

13. It was further stated by the review applicant that his wife and her Australian husband had been divorced for over a decade and have 2 twin boys. It was stated that the applicants were married in Saigon in June 2018 and that the decision was made to send the boys to school in Australia where the previous husband’s parents and sisters reside. It was further stated that due to the impact of the pandemic these plans were delayed and that one of the boys travelled to Melbourne in January 2021 while his twin brother joined him in July 2021 and both boys are Australian citizens.

14. It was further stated that Vietnam experienced extensive lockdowns between late July and early November 2021 and that as restrictions eased the review applicant’s daughter rescheduled her engagement originally planned for April 2020 to April 2022. It was further stated that the review applicant’s wife (the visa applicant) was eager to visit her sons even though she did not possess a tourist visa for any visits however she did hold an APEC Business travel card from Vietnam and was aware, he stated, that this was not meant for personal travel.

15. It was further stated that the review applicant initiated the application process which was submitted on 14 January 2022 and subsequently learned around early March that Australia had relaxed the APEC card conditions, he stated, to allow for family visits.

16. It was stated that flights were booked and that the visa applicant intended to spend some time with her sons and that the review applicant’s family resides in Sydney and that she and her sons visited for a week during the engagement celebrations.

17. It was further stated that a few days before her scheduled return to Vietnam the review applicant received the rejection notice. It was stated that while ignorance or oversight is not an excuse, he did overlook the stipulation regarding being out of the country.

18. It was further stated that the waiting period for visas remains extensive and that the review applicant discovered the possibility of appealing the refusal and initiated the process. It was further stated that the review applicant engaged an agency to apply for a visitor visa for the visa applicant and was informed that a valid visa application was already in the system.

19. According to the review applicant he checked this information, and it was revealed that a valid business visitor stream visa had been granted until 17 August 2023 and that they had no knowledge of this visa.

20. It was further stated that this visa has been utilised by the visa applicant to visit her sons currently being in Melbourne with them and that she entered the country well before the expiry date.

21. It was further stated that the visa applicant has a pressing need to travel due to her son’s age and circumstances.

22. At the hearing the Tribunal had a discussion with the applicants regarding the application.

23. The review applicant stated that his wife, the visa applicant, is currently residing in Australia and that she is still on the above business visitor stream visa which allows her to remain in Australia for a period of up to 3 months as long as she came back to Australia by 17 August 2023, and that she plans to return back to Vietnam, where they are both living at this time, in November this year. He stated that at some point in the future they may wish to reside permanently in Australia but at this point they are living in Vietnam but that his wife needs to return periodically to Australia to spend time with one of her sons who is living in Australia with the younger sibling of her ex-husband and that he is studying year 12. He stated that the other son is back in Vietnam living with his father.

24. The visa applicant stated that one of her sons has returned to Vietnam as he has been suffering from depression and has not been able to study and so is living in Vietnam neither working nor studying at this time. She stated that both her sons are 19 years old. She also stated that she now knows she was wrong regarding her application and was not overseas at the time of application and the time of grant but that she did not realise this was a condition of the visa at that time. She stated that she then appealed the decision because she thought it would be quicker to go through that process than make another new application.

25. The review applicant also stated as above that he was aware that the conditions of the visa grant were not met but that he would like to matter reviewed and remitted back to the Department for further consideration.

26. The Tribunal has considered the evidence very carefully and acknowledges the difficult situation that the applicants find themselves in at this time living in Vietnam, wishing to visit Australia, and with the added complication of the visa applicant having a son who is now back in Vietnam with his father and experiencing his own set of difficulties.

27. The Tribunal notes however that it has been acknowledged also that the applicants do not meet the requirements for the grant of this particular visa and that they do not meet the conditions of cl 600.412.

28. On that basis the Tribunal finds that the visa applicant was not outside Australia at the time of application and at the time of grant and did not meet the required conditions for the visa. The Tribunal has considered that due to these circumstances the decision must be affirmed. The Tribunal advised the applicants to ensure they sought the appropriate advice to resolve their current circumstances as spouses living currently in Vietnam but with the visa applicant wishing to visit Australia.

29. 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 600.412 are not met.

    DECISION

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

    Stephen Witts
    Member