PHAM (Migration)

[2021] AATA 811

PHAM (Migration) [2021] AATA 811 (24 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs THI NGA PHAM

VISA APPLICANT:  Miss NGOC NHU AN PHAM

CASE NUMBER:  1911643

HOME AFFAIRS REFERENCE(S):          BCC2019/1389813

MEMBER:Anne Grant

DATE:24 March 2021

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 24 March 2021 at 3:03pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – family ties and full-time study in home country and plans to study in third country – previous compliant travel by family members – sponsor’s capacity to support other family members in future – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.231

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 11 April 2019 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 19 March 2019. 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 600.211 because after considering her application (at the time she was a child) in the context of her father’s application, they were not satisfied that either of them had a genuine intention to remain temporarily in Australia.   

5. The review applicant appeared before the Tribunal on 17 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, her father and the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The review and visa applicant were represented in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

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)).   In the visa applicant’s case, she has not travelled to Australia in the past so this is not a factor which is pertinent in this case.  Her father has travelled to Australia in 2016 and at the time complied with his visa.  Her brother is currently studying in Australia and has complied with the terms of his visas at all times.  Consideration of the family history suggests that the applicant could reasonably be expected to comply with the conditions of any visa if granted and that she would leave at the relevant time in compliance with those conditions.

11. 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.

12. The review applicant, who is the applicant’s aunt, confirmed that she was aware of the general conditions and that if her niece and her brother failed to comply with those conditions, it might impact on her own situation in Australia and her capacity to support other visitors from Vietnam in future.  The visa applicant undertook to comply with all visa conditions and to depart Australia at the end of any permitted visit.

13. The Tribunal has also considered all other relevant matters (cl 600.211(c)).   As noted above, the visa applicant confirmed that she would comply with all conditions and would depart as required at the end of the visa.  She wishes to visit her aunt, her brother and her grandparents. She gave evidence that she is studying German full time in Vietnam in preparation for her future desire to study health care in Germany, and would stay only for a holiday in Australia.  She has provided confirmation of current enrolment in the B1 German Course at Phuong Nam Education Language Centre.  Her evidence is that she does not work and is supported by her parents and so would travel with and be supported by her father. 

14. The visa applicant’s father confirmed that he runs an earth moving business in Vietnam which he has conducted since 2014. The business is a profitable business.  He had previously provided various taxation and business documents.  The Tribunal considers that those documents establish that his business is genuine.  He gave evidence that his business employs 10 staff and that, whilst he was in Australia, his wife would help with the administration of any necessary business in his absence, such as paying employees.  He could only stay for about a month before he would be needed to continue the business. His wife works as a vice principal at a primary school so only helps out with the business on an ad hoc basis.  The visa applicant’s father also gave evidence that they own their home as well as a property in Long Tan from which the business operates.  Land documents have been provided confirming ownership of properties.  The business owns its’ own earthmoving machinery and has no substantial debts. The Tribunal heard that the visa applicant and her father do not belong to any minority ethnic group or religion which suffers persecution in Vietnam.  The visa applicant’s father stated that he has not had any problems with the Vietnamese authorities and neither has he been involved in any political activism or protests.

15. The visa applicant’s brother is studying in Australia and her father gave evidence that he has complied with the terms of his student visa.  There is no information on the departmental file to suggest otherwise.  The visa applicant clearly stated that she was aware that if she failed to comply with the terms of any visitor visa that this would have a negative impact on any application for a student or any other visa in Australia in future.  

16. The Tribunal accepted the evidence of all those who gave evidence before the Tribunal as reliable.  The Tribunal has carefully considered the applicant’s circumstances overall (including the extensive documentary evidence provided in support of her own and her father’s reviews.) The Tribunal has also considered the evidence of the visa applicant, the review applicant and the visa applicant’s father.  Taking all of that evidence into account (including evidence provided on her father’s review (heard contemporaneously) which discloses the extent of his business and property ties in Vietnam)  the Tribunal finds that the visa applicant has significant and compelling reasons to return to Vietnam after a visit to Australia, and is satisfied that the visa applicant has a genuine intention to visit and remain temporarily in Australia. The Tribunal considers that the visa applicant’s extensive family connections in Australia explain her desire to visit rather than provide an incentive for her to overstay her permitted visit.  

17. 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

18. 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.

    Anne Grant
    Member