Phan (Migration)

[2019] AATA 6020

Phan (Migration) [2019] AATA 6020 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mrs Thi Mau Don Phan
Mrs Nu Ai Linh Tran

VISA APPLICANT:  Mrs Nu Ai Linh Tran

CASE NUMBER:  1804892

HOME AFFAIRS REFERENCE(S):          BCC2018/145817

MEMBER:Kira Raif

DATE:3 October 2019

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 03 October 2019 at 10:35am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine intention to stay temporarily – incentives to stay or return – business and family commitments, including young child, in Vietnam – planned travel for two weeks, but ‘up to three months’ the shortest period on application form – review applicant’s other family members’ compliance with visa conditions – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 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 on 15 February 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Vietnam, born in December 1985. She made the application for the Visitor (Sponsored Family) visa on 9 January 2018. 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 intended to stay temporarily in Australia for the purpose for which the visa is granted. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicants appeared before the Tribunal on 3 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Vo, the review applicant’s nephew. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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.

5. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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.

6. In the present case, the visa applicant sought the visa for the purposes of visiting family members, attending a family function and visiting Australia. These are purposes for which a visa in the Sponsored Family stream may be granted: cl.600.231.

7. 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)).

8. 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.

   Does the visa applicant genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted?

9. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

10. The visa applicant stated on the application form that she intends to travel to Australia for a period of up to three months to visit family, attend a cousin’s wedding, see the country and for a holiday. The delegate noted that the applicant claims to be employed as a director at Van Ba and to have family commitments – a husband and a minor child – in Vietnam, noting that such work and family commitments were inconsistent with the proposed duration of stay.

11. The review applicant provided a written statement to the Tribunal dated 23 February 2018. In it, the review applicant states that she helped the visa applicant with the form and ticked ‘up to three months’ box as this was the minimum time specified for the visit.  The review applicant states that when she left Vietnam in 1989 she left her second daughter with relatives and her daughter became very close with the visa applicant. Now her daughter is getting married and wants to sponsor the visa applicant and her parents to attend her wedding in Australia. The review applicant states that the visa applicant is married and has children and has been looking after the family business for the past 10 years, she has a good life in Vietnam, her family, job and a house and will not stay longer than what the visa allows. The main reason for her visit is to attend the wedding. At the commencement of the hearing, the review applicant provided to the Tribunal additional materials, including some personal documents relating to the visa applicant and evidence of visa grant for other relatives.

12. In oral evidence, the review applicant told the Tribunal that her daughter was planning to get married at the time and she wanted to invite her niece for the wedding. The review applicant said that her daughter was brought up by her sister, so her daughter and her niece, the visa applicant, were very close together. Although her daughter has now married, the review applicant said she still wants her niece to visit and look around Australia.

13. The review applicant said that the visa applicant travelled to Korea on a four days tour in November 2018 but had never travelled to Australia or any other country. Her visit to Korea was short because at the time she travelled with her son, who had to return to school. If the visa applicant were to travel to Australia, she would travel on her own for two weeks only and would leave the son in the care of his father and grandparents. The review applicant said that the visa applicant might time the visit so that her son can travel with her during the school holidays but they have not yet made the application for the son’s visa. If the child cannot travel, then the child’s father or grandparents would look after the child.

14. The review applicant said that she had previously sponsored her sister and her sister visited for six weeks and left the country before her visa expired because they were all busy working and she had nothing to do. Her other sister sponsored another sibling who also complied with visa conditions. The review applicant states that everyone in her family had complied with visa conditions.

15. The review applicant said that her niece’s family owns a shop selling motorised equipment. There are three to four employees in that shop, so the visa applicant’s husband and other employees can look after the shop during the visa applicant’s stay in Australia. During her visit, the visa applicant can sightsee around Sydney and other states if there is time, and she can visit other relatives in Australia. The review applicant said the visa applicant is ‘reasonably well off’ and can pay for the airfares while the review applicant said she would pay for other expenses.

16. The review applicant said that her niece has two houses and a shop and is well off and her family is in Vietnam. She only wants to visit Australia for a short visit and she has never applied for any other visa or had been refused any other visa. The review applicant said they ticked the box of ‘up to three months’ on the form because that was the shortest period.

17. Mr Vo told the Tribunal that he helped fill in the forms for his aunt. He had previously helped with the forms for other relatives and they were successful. He said he ticked the ‘up to three months’ box because that was the shortest period but that was the reason the application was refused. He said that the visa applicant never intended to stay the whole three months. Mr Vo noted that since then the application was made, visa applicant travelled to South Korea and complied with visa conditions. The purpose of the visit was for her to attend the wedding and spend the festivities with the family. Mr Vo said that all other family members have complied with visa requirements and left when they were meant to. Mr Vo said they are a law-abiding family.

18. The Tribunal has considered whether the visa applicant intends to stay temporarily for the purpose for which the visa is granted. 

19. There is no evidence that the visa applicant had previously held an Australian visa and there is nothing to suggest that the visa applicant had not complied substantially with the conditions of any last substantive visa or subsequent bridging visas.

20. The Tribunal has considered whether the visa applicant intends to comply with the conditions to which her visa would be subject. These conditions are set out above.

21. There is nothing to suggest that the visa applicant intends to work or study in Australia. The Tribunal acknowledges that the intended period of stay is two weeks. While the initial purpose of the visit is no longer relevant, as the wedding had taken place, the intended purpose is to visit the relatives in Australia and see the country. The Tribunal is of the view that the intended period of stay of two weeks is consistent with that stated purpose.

22. The Tribunal places weight on the fact that the visa applicant’s husband and young child would remain in Vietnam and this would constitute a strong incentive for her to return to Vietnam. She also has work commitments, although the review applicant’s evidence is that there are others who can take care of the business and in such circumstances, the existence of work commitments would not constitute a significant incentive for the visa applicant to return to Vietnam. The Tribunal acknowledges that the review applicant and her family had sponsored other relatives to travel to Australia for visitor visas and their evidence is that everyone had complied with visa conditions and left the country before the expiry of the visas. The Tribunal accepts that the visa applicant has the funds to support her travel and stay in Australia.

23. The Tribunal is satisfied, on balance, that the visa applicant intends to comply with the conditions to which her visa would be subject. Having considered the totality of the visa applicant’s circumstances, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The visa applicant meets cl. 600.211.

    DECISION

24. 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.

    Kira Raif
    Senior Member