Phan (Migration)

[2018] AATA 5867

Phan (Migration) [2018] AATA 5867 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Ha Phan

VISA APPLICANT:  Mr Ty Phan

CASE NUMBER:  1718208

HOME AFFAIRS REFERENCE(S):           BCC2017/1958419

MEMBER:Nicole Burns

DATE:11 December 2018

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 11 December 2018 at 4:14pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – intends to stay temporarily in Australia – visiting family – strong incentives to return to home country – business owner – family – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 27 June 2017 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 applied for the visa on 1 June 2017. 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 (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.

5. The review applicant appeared before the Tribunal on 11 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant – who is the review applicant’s brother – via the telephone from Vietnam.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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)).  Given the visa applicant has never visited Australia before, this subclause does not apply.

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.600.612):

    ·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.

11. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

12. At the Tribunal hearing the review applicant gave evidence about his brother’s circumstances in Vietnam and reason and plans for the proposed visit.  He said his brother wants to visit for up to three months to spend time with him and their two other brothers (and their families) who live in Australia, one of whom has mental health issues.  He will stay with the review applicant in his home.  The review applicant told the Tribunal he owns and operates three nail salon businesses in Melbourne.  Nonetheless the visa applicant has sufficient savings from his work history in Vietnam to pay for his own trip, as evidenced by a copy of his bank account savings deposit provided.  The Tribunal accepts his evidence in this regard.

13. The review applicant told the Tribunal that his brother is 34, single, and lives with their mother in Hue, central Vietnam.  He owns shares in a hairdressing salon where he occasionally works, along with their sister’s child.  He also works as a driver.  The visa applicant told the Tribunal he will lease his car to other drivers whilst he visits Australia and that there is other staff to take care of the hair dressing salon during his absence.  The visa applicant provided a copy of a business registration certificate to the Department and the Tribunal accepts his work related claims.  It finds that his work responsibilities will act as an incentive for him to return to Vietnam before the expiry of any visitor visa that may be granted. 

14. In terms of family ties and responsibilities, the visa applicant told the Tribunal that although he will be leaving his mother alone whilst in Australia, his sister and brother live close by and will take turns in caring for her.  The Tribunal notes the presence of his three brothers and numerous nieces and nephews in Australia does act as an incentive for him to remain here.  On the other hand the presence of his mother, two sisters, another brother and numerous nieces, nephews and other extended family members in Vietnam act as strong incentives for him to return there.

15. [Paragraph deleted].

16. As well, the Tribunal notes the review applicant’s oral evidence that his parents visited him in Australia about eight years ago; his mother visited him again (after his father died) around four years ago; and his niece has visited him twice: in 2005 and 2006.  The review applicant said his relatives who visited always abided by their visa conditions, including by returning to Vietnam before the expiry of their visitor visas.  The Tribunal gives significant weight to this fact and considers the review applicant would ensure that his brother does not overstay any visitor visa that may be granted in order not to jeopardise any future visa applications from other family members from Vietnam.  

17. Considering the visa applicant’s circumstances overall, the Tribunal is satisfied that his stated intention of only coming to Australia temporarily and for the express purpose of visiting his brothers and other relatives is genuine.

18. 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

19. 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.

    Nicole Burns
    Member