Pham (Migration)

[2021] AATA 401

Pham (Migration) [2021] AATA 401 (22 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ngoc Pham

VISA APPLICANT:  Ms Thanh Pham

CASE NUMBER:  1900853

HOME AFFAIRS REFERENCE(S):          BCC2018/5008612

MEMBER:Meredith Jackson

DATE:22 February 2021

PLACE OF DECISION:  Brisbane

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 22 February 2021 at 11:26am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – incentives to return to home country – dependant 14-year-old daughter in Vietnam to care for – salaried job to return to – son’s future prospects in Australia – decision under review remitted

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

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 18 December 2018 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 9 November 2018. 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 the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia.

5.    The review applicant appeared before the Tribunal on 22 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6.    The review applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Case summary

8.    The review applicant, Ngoc Pham, is a 40 year old Australian citizen who is the sister of the visa applicant, Thanh Thi Pham, a 45 year old citizen of Vietnam. The visa applicant applied for the Visitor (Family Stream) visa to visit her sister and her 23 year old son in Australia. Her son is soon to graduate as a scholarship supported student at Deakin University. The visa applicant also has a 14 year-old daughter in Vietnam. The visa applicant, who is in a new job as an office worker in Vietnam, visited Australia in 2016 on a Visitor visa. She stayed for 90 days and returned to Vietnam on the last day of the permitted period.

Issue in the case

9.    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.

1. The visa applicant seeks the visa for the purposes of a family visit. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

2. 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)).

3. The visa applicant, a citizen of Vietnam, previously held a Subclass 600 Visitor visa granted on 20 August 2016 and valid until 4 December 2016. The visa was issued with three visa conditions: 8101 (no work); 8201 (maximum 3 months study) and 8503 (no further stay). The visa applicant was granted the visa so she could visit the review applicant, her sister Ngoc Kin Thi Pham, an Australian citizen, her sister’s family and the visa applicant’s son. Departmental records indicate that the applicant arrived in Australia on 6 September 2016 and departed on 4 December 2016, the last day of the permitted period.

4. On 10 January 2019, the review applicant wrote to the Tribunal with her review application, stating that the visa applicant had complied with her visa conditions when she visited Australia to see her son and the review applicant’s family. She stated that she was sure that her sister’s visit to Australia would be a genuine visit and she would again comply with visa conditions. There is no evidence before the Tribunal that the applicant did not comply with the conditions of the previously held visa.

5. 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.

Submissions and oral evidence

1. The applicant provided family details to the Tribunal in written and oral evidence. The Tribunal has also had regard to information in departmental files submitted in support of the visa application. Relevantly, the records and written and oral submissions provide that:

   a.The applicant’s son, Van Minh Nguyen has been in Australia for six years. He currently holds a Subclass 500 Student visa valid until 30 August 2021. His first Student visa was granted in 2015, a Subclass 573 visa for study in the higher education sector. In 2017, he was granted a Science, Technology, Engineering and Mathematics (STEM) scholarship by his university to continue his studies in a Bachelor of Information Technology degree. The review applicant stated at hearing that he has completed his studies and is awaiting graduation. He is seeking a job in his field and hoping to attain permanent residency in Australia.

   b.The visa applicant has been employed as an office worker at a joint stock company in her home city since 1 June 2020. She earned a monthly salary equivalent to approximately AUD 550 between her start date and December 2020.

   c.The visa applicant holds a term deposit valued at approximately AUD 1,100 in her name. The delegate’s decision, provided by the applicant, indicates that at the time of application the visa applicant was employed as an accountant for a company named Vision Import.

   d.On 8 December 2017, the visa applicant (the children’s father) were divorced. The review applicant stated at the hearing the visa applicant’s daughter will remain in Vietnam with her grandmother during her mother’s intended absence.

   e.The review applicant is a single parent who has established her own hair salon in Australia and is currently receiving the Job Keeper allowance in the context of COVID-19.

   f.Her three children and the visa applicant’s son live with the review applicant;

   g.The review applicant started a new job on 1 June 2020 and this means she could only visit Australia for one month; she would take leave without pay.

Analysis and conclusions

1. The Tribunal on review has had the benefit of hearing in person from the review applicant about the visa applicant’s current circumstances; her sister’s reasons for wanting to visit Australia; the review applicant’s own circumstances and those of the visa applicant’s Australian-resident son. She claims that the visa applicant wholly intends to comply with visa conditions and has demonstrated that she will do so by not breaching any conditions on her previous visit. The Tribunal notes that departmental records confirm that the applicant departed Australia within the permitted stay period of the Visitor visa held in 2016.

2. The Tribunal has taken into account that in 2016, the visa applicant’s minor child was aged 10 years and the review applicant was then married to her former husband. At the time of this decision, the child is 13, and the visa applicant is divorced. The Tribunal raised with the review applicant that her sister, in those new circumstances, may be tempted to seek to remain in Australia beyond the granted period of stay, to support her son and to later attempt to bring her daughter to Australia. The review applicant responded that the visa applicant has no intention of risking her son’s prospects by breaching the conditions of a Visitor visa. She said the son has worked hard in Australia for six years and is looking for a job, and he may be in a position to seek to remain in Australia for a further period, or permanently, and his mother will not jeopardise that or his future.

3. The Tribunal concludes that, on balance, while the visa applicant’s circumstances differ from those at the time of application for the visa, at the time of review she has a dependant 14 year old child in Vietnam to care for; a permanent, salaried job to return to; and her son’s future prospects to consider. For the Tribunal, these amount to disincentives that, in the visa applicant’s case, tend to outweigh any motivation that she may have to remain in Australia beyond the scope of her visa. While incentives to stay on may include better remuneration or education prospects in Australia for herself and her daughter, and being close to her son and sister’s family, the Tribunal found the review applicant credible and firm in her assurances that this option is not on the table for the applicant, because the family has too much to lose with a visa breach. She stated: “When we come to Australia, we must obey Australian law.”

4. The review applicant indicated that as a single mother caring for her own children and her sister’s son, a visit from her sister would help her and her nephew. She now owns a hairdressing salon and works full-time in it, as well as raises the children. Her nephew works to support himself in a city restaurant but still lives with her. He is happy with his achievements, and she believes he has studied very well. There is no risk his mother would do anything to derail his broader potential.

5. The Tribunal notes that the visa applicant has provided evidence that she has a new, steadily remunerated job in Vietnam, where she has completed six months’ service and continuing, according to the review applicant. The review applicant stated at the hearing that this new job means her sister will be restricted to taking only a month off if granted the visa. Last time, she was able to take extended time away because there were people available at her former employer’s workplace to backfill her position.

6. On balance, and having carefully weighed all the evidence before it, the Tribunal is satisfied the applicant’s incentives to return to Vietnam after visiting Australia outweigh those that may incentivise an extended stay.

7. The Tribunal has also considered whether there are other relevant matters (cl 600.211(c)) and has before it no relevant evidence of other issues in the case.

8. 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

1. 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.

Meredith Jackson
Member