Pham (Migration)

[2019] AATA 3480

Pham (Migration) [2019] AATA 3480 (28 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Mary Pham

VISA APPLICANT:  Mr Van Chien Pham

CASE NUMBER:  1812461

HOME AFFAIRS REFERENCE(S):          01183524

MEMBER:Justine Clarke

DATE OF ORAL DECISION:  28 June 2019

DATE OF WRITTEN STATEMENT:         5 July 2019

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 05 July 2019 at 4:20pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – visa to visit sister and sightsee – genuinely intends to stay temporarily in Australia – strong incentives to return to home country – three children and grandchild in Vietnam – assets – lifestyle – consistent evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 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 Immigration on 23 March 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. On 14 March 2018, the visa applicant—who is, at the time of this decision, a 53 year old national of Vietnam—applied for the visa. 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 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 review applicant is the visa applicant’s older sister. She is a 57 year old, married woman who told the Tribunal that she has lived in Australia for 32 years.

5. The review applicant provided the Tribunal with a copy of the primary decision. 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 that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted.

6. On 28 June 2019, the review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband Mr Cong Nhuong Pham and the review applicant’s friend Mr Van T Nguyen. The visa applicant was available and willing to provide oral evidence by telephone from Vietnam but, having heard the review applicant’s oral evidence and that of the witnesses, the Tribunal did not consider it to be necessary. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by her registered migration agent and the representative also attended the hearing.

7. The Tribunal gave its decision on the review at the conclusion of the hearing. The Tribunal concluded that the matter should be remitted for reconsideration. The following are the reasons for that decision.

   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. The visa applicant seeks the visa for the purposes of visiting his sister, the review applicant, and sight-seeing. The Tribunal notes the review applicant’s signed statement of 22 December 2018 (including English translation) outlining the reasons for the visa applicant’s proposed visit. She gave consistent oral evidence at the hearing.

10. The review applicant told the Tribunal that she and her husband will be celebrating their 35th wedding anniversary in 2019 and that they would very much like to have the visa applicant and his wife present in order to represent family in Vietnam. The written submissions of 9 April 2019 expressed the review applicant’s personal reasons in this respect as follows:

    My family have been in Australia for the last 32 years. Sometimes I felt sad, as I have no relatives in Australia and no one from my own family has ever had a chance to visit me since I settled in Australia.

11. In addition, the review applicant, Mr Pham and Mr Nguyen all told the Tribunal that the review applicant and Mr Pham wanted to invite the visa applicant and his wife—whom the Tribunal notes is named Truong Thi Diep—to Australia as a gesture of thanks and respect for them having cared for the applicants’ parents until they died. Mr Nguyen described this as being a reward for their very big sacrifice.

12. The claimed purpose is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

13. At the hearing, the Tribunal explained to the review applicant the requirements of cl.600.211 and the matters relevant to its assessment. The Tribunal told the review applicant that the primary issue for consideration was whether the visa applicant genuinely intends to visit Australia temporarily.

14. In assessing the issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s file as well as the oral evidence given at the hearing.

    Clause 600.211(a)

15. 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).

16. The review applicant gave oral evidence that the visa applicant has not travelled to Australia before; indeed, that he has never travelled outside Vietnam. She explained that he had had not travelled because he had been caring for their elderly parents prior to them passing. In the circumstances, the Tribunal makes no findings with respect to previous compliance with immigration conditions.

    Clause 600.211(b)

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).

18. 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; and

    ·8531 – must not remain in Australia after end of permitted stay.

19. The Tribunal discussed each of these conditions with the review applicant. The review applicant, Mr Pham and Mr Nguyen told the Tribunal that they honestly believed that the visa applicant would comply with all conditions. In her signed statement, the review applicant stated, ‘[w]e promise to follow the Australian Laws and will take full responsibility on my brother and his wife’s leaving Australia on the due date indicated on the visa’. Mr Pham made a similar statement at the hearing. Mr Nguyen gave oral evidence that, if required, he would be willing to provide security bond in order to ensure compliance with the visa conditions.

20. The Tribunal found all three witnesses to be very credible so the Tribunal accepts this oral evidence.

    Clause 600.211(c)

21. The Tribunal has also considered all other relevant matters, pursuant to cl.600.211(c).

22. In the primary decision, the delegate noted that the visa applicant was of working age and self-employed and had a dependent child to support in Vietnam but notwithstanding, the delegate expressed the view that the visa applicant had not provided sufficient evidence of his economic situation in Vietnam to demonstrate that he intends a genuine temporary stay in Australia.

23. The Tribunal asked the review applicant questions to ascertain the factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay and those factors that would act as an incentive for him to return to Vietnam.

24. With respect to factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay, the Tribunal notes that the visa applicant has some family members in Australia, specifically, the review applicant and her family.

25. The delegate did not raise country information as a concern in the primary decision and no specific country information was discussed with the review applicant at the hearing.  

26. The review applicant gave oral evidence about a number of the visa applicant’s personal circumstances which would encourage him to return to Vietnam at the end of the proposed visit. She told the Tribunal that the visa applicant had three children who would be remaining in Vietnam: two daughters and a son. She said that both daughters had reached adulthood, with one daughter having a child of her own. She said that the visa applicant’s son was under 18 years of age. She said that all members of the family lived together—including the visa applicant’s grandchild. She told the Tribunal that the customs and way of life in Vietnam are different to that in Australia and that the visa applicant was familiar with the Vietnamese way.

27. She also told the Tribunal that both the visa applicant and his wife have jobs in Vietnam. She gave oral evidence that the visa applicant’s wife works as a sales person for the local school canteen and the visa applicant has work at his own poultry farm. The written submissions described this business as a ‘kitchen farm in Soc Trang Vietnam’. A couple of photographs said to be of the farm were submitted to the Tribunal.

28. There is evidence before the Tribunal that the visa applicant’s daughter Ms Tieu Anh PHAM will look after the business during the course of the proposed visit to Australia. The review applicant submitted the visa applicant’s signed written statement of 4 April 2019 (including English translation) which had information about this as well a ‘business hand-over’ authority letter.

29. It was submitted, in the written submissions, that the visa applicant ‘is doing reasonably well by Vietnamese standards’. The review applicant said that she did not know the exact amount of the couple’s income but that she knew that it was sufficient for them to have savings. She thought that they enjoyed an average income in Vietnam. She also explained that the visa applicant owned his own house and land.

30. The Tribunal notes that there is some—albeit limited—evidence pertaining to the financial status of the visa applicant on the Department’s file. The Tribunal notes that the review applicant has not provided further documentary evidence pertaining to the visa applicant’s financial status in this review. As the Tribunal found the review applicant and the two witnesses to be very credible in providing their evidence, the lack of documents about the visa applicant’s financial status does not act as a factor weighing against the merits of this case as it might in another case.

31. The Tribunal notes that the primary decision states that departmental records indicate that the visa applicant failed to disclose a previous visitor visa refusal as required in question 42 of the visa application. The Tribunal asked the review applicant about this and the Tribunal was satisfied as to the veracity of her response. This aspect of the case is not a reason or part of the reason for the Tribunal to affirm the decision under review.

    CONCLUSION

32. After considering all the evidence before it, including the visa applicant’s personal circumstances, on balance the Tribunal considers that the presence of the visa applicant’s three children (including one minor) and one grandchild in Vietnam, his assets, livelihood and identification with the Vietnamese way of life form stronger incentives for the visa applicant to return to Vietnam than his incentive to remain in Australia with his older sister and her family. Overall, having regard to the specific circumstances of this case, the Tribunal does not share the delegate’s concerns.

33. 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

34. 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.

    Justine Clarke
    Member