PHAN (Migration)

[2020] AATA 4567

PHAN (Migration) [2020] AATA 4567 (4 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms THI THUY LINH PHAN

VISA APPLICANT:  Miss THI THUY PHUONG PHAN

CASE NUMBER:  1826173

HOME AFFAIRS REFERENCE(S):          BCC2018/3227865

MEMBER:Jane Marquard

DATE:4 November 2020

PLACE OF DECISION:  Sydney

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 04 November 2020 at 6:37am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – purpose and duration of visit – incentives to remain or return – parents and other siblings in home country – parents’ health, applicant’s work and finances – previous compliant travel by applicant and parents – review applicant’s circumstances and offer of security bond – possible future visits by family members – 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 Immigration (the Department) on 6 September 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). The visa applicant is a 44-year-old woman from Ho Chi Minh city in Vietnam. The review applicant is her sister, an Australian citizen.

2. The visa applicant applied for the visa on 27 August 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 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 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 intends to stay temporarily for the purpose for which the visa is granted. Limited information was provided by the applicants to the Department.

5. No Tribunal hearing was necessary in this matter as the Tribunal was able to determine the matter on the papers. The applicants provided written submissions and documents to the Tribunal, which are discussed in the consideration of claims and evidence below.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. 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)). The visa applicant has not travelled previously to Australia such that this consideration is not relevant.

10. 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.

11. The Tribunal has considered the issue of whether she would comply with the conditions of the visa alongside the issue of whether she has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. In considering these matters, the Tribunal has considered various relevant matters.

12. Firstly, the Tribunal has taken into consideration the purpose and duration of the visit. The visa applicant told the Department that she wished to visit for one month to attend her daughter’s kitchen tea on 11 November 2018 and see her nieces and nephews, as well as doing some sightseeing. She said that her sister had lived in Australia for 25 years and she wanted to visit her. For health reasons, her parents could not attend the kitchen tea. This appears to be a genuine reason for a visit to see family members in Australia. While the time for the kitchen tea has now passed, it is reasonable that the applicant would want to visit her sister, nieces and nephews in Australia.

13. Secondly, the Tribunal has taken into consideration the incentives to return to Vietnam at the end of the visit. The applicants’ parents and four other siblings live in Vietnam. In submissions to the Tribunal, the review applicant said that the visa applicant lives with their parents, who need close care because of their health issues. Their other siblings do not live nearby. The visa applicant has taken on this role for many years. It was submitted that for this reason she could not leave them for a long time.

14. The applicant also provided the Department with a copy of her letter from Thong Hoa Packaging dated 26 August 2018 which indicated that she had been working as an accountant since May 2015 with this company. The company stated that she had been granted three weeks leave. The applicant provided the Tribunal with an updated labour contract dated 15 September 2020 for the position of full-time accountant at the same company. The date was for one year, but the official dates included were 1 July 2020 to 30 June 2021. Her salary was stated to be 8 500 000 VND. The contract was reviewable each year and it appears that she has been working for the same company on an annual reviewable basis. She also provided details of funds in a bank account, but the delegate was concerned that funds had been deposited shortly before the application. However, updated statements were provided to the Tribunal. A verification of statement dated 15 September 2020 from ACB bank showed that she had a balance of the equivalent of $17 204 USD. In submissions to the Tribunal details were provided of land use rights on a plot of land in ‘Rung Sen Hamlet’, Duc Hoa District, Long An province, as urban residential land.

15. The Tribunal notes that Vietnam has a number of economic and political issues[1] which might act as an incentive for a visitor to Australia to overstay a visa in an attempt to reside in Australia. However in the applicant’s case, attraction to stay in Australia is counteracted by the fact that all of the applicants’ family except for the review applicant live in Vietnam and she has the responsibility of living with and caring for her parents. Furthermore she has had a stable job as an accountant since 2015 and has funds in a bank account and use of a plot of land. The Tribunal accepts therefore that she has significant incentives to return to Vietnam at the end of the visit.

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 13 December 2019

16. Thirdly, the Tribunal has taken into consideration the fact that the visa and review applicant’s parents have both visited Australia on a previous occasion, sponsored by the review applicant. They arrived on 4 December 2015 and departed on 28 January 2016 before the expiry of their visas. They have also travelled to the USA on a number of occasions. This travel and compliance by close family members has been given significant weight in favour of granting the visa.

17. Fourthly, the Tribunal has taken into account positively the fact that the review applicant has expressed a willingness to provide a security to guarantee the return of the visa applicant at the expiry of the visa. This may be a case where such security is warranted. The fact that she is prepared to provide a security does indicate a certainty that her sister will return at the end of the visit.

18. Finally, the Tribunal has taken into account the character and circumstances of the review applicant. She arrived in Australia in 1994 and acquired Australian citizenship in 1998. She said that she has a stable job and has three adult children., She has made two previous applications sponsoring her parents for visitor visas in 2015. She said that she would guarantee that her sister would comply with visa conditions and appears to acknowledge the importance of such a guarantee. She has numerous family members in Vietnam and it is probable that she acknowledges that failure to comply with visa conditions by her sister would undermine her ability to sponsor further visits of family members to Australia.

    Findings

19. For the above reasons considered cumulatively and in particular the previous compliance of family members and incentives to return to Vietnam, the Tribunal is satisfied that the visa applicant will comply with visa conditions and 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

20. 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.

    Jane Marquard
    Member