Phan (Migration)

[2023] AATA 2365

Phan (Migration) [2023] AATA 2365 (26 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Xuan Thanh Thi Phan

VISA APPLICANT:  Ms Thi Ngoc Thanh Phan

REPRESENTATIVE:  Mr Adewale Oladejo

CASE NUMBER:  2212748

HOME AFFAIRS REFERENCE(S):          BCC2021/2554018

MEMBER:Alison Murphy

DATE:26 July 2023

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 26 July 2023 at 4:40pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entry and compliance with conditions – family members in both countries – properties, savings and irregular work in home country – explanation for previous refusal of another child’s visa accepted – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222

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 25 July 2022 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 3 January 2022. 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 (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 visa applicant genuinely intends to stay temporarily in Australia.

5. The review applicant and the visa applicant appeared before the Tribunal on 24 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Marcus (Nguyen Phuoc Tam) Nguyen, the visa applicant’s son, and Cathy Gillespie. 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. The representative attended the Tribunal hearing.

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

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

10. In particular, the visa applicant wishes to visit her son Marcus, who is the holder of an Australian student visa. Marcus is 17 years old and lives with the review applicant. He attends school in Melbourne where he is currently completing year 11. The review applicant and visa applicant also have three other sisters currently resident in Australia and three other siblings in Vietnam. Their parents are both deceased.

11. 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)).

12. The visa applicant travelled to Australia on a visitor visa for several weeks in 2011. Departmental movement records show that she departed Australia prior to the end of her visa period. There is nothing in the material before the Tribunal that would indicate she did not comply with any term of that visa and the Tribunal accepts that she did.

13. 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(3):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

14. Consistently with the material provided to the Department, the visa applicant gave evidence that she received most of her income from two rental properties that she owns in Ho Chi Minh City. She provided the Tribunal with certificates of land use right naming her as the owner of those two properties as well as tenancy agreements identifying her as the lessor for each property and photographs of the properties. Her recent bank statement also shows rental income from the tenants of those properties. The visa applicant stated that she also supplements her income by working as a cook, although not regularly. A Techcombank statement shows that she holds significant cash reserves in term deposits with that bank. The Tribunal accepts that the visa applicant has sufficient funds to support herself during her trip to Australia. The visa applicant is middle aged and financially established and there is no reason to think she would seek to study if she was granted the visa. For these reasons, the Tribunal is satisfied that the visa applicant intends to comply with the conditions to which the visa would be subject.

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

16. The delegate’s decision does not suggest that the economic situation in Vietnam was relevant to the decision to refuse the visa. In any case the applicant’s financial circumstances are set out above and the Tribunal accepts that the visa applicant’s income in Vietnam is sufficient to meet the financial needs of herself and her children. Nor does the delegate’s decision suggest that any social unrest or conflict in Vietnam would provide a disincentive for the visa applicant to return home, rather all the evidence before the Tribunal indicates the visa applicant lives a comfortable lifestyle in Vietnam.

17. The purpose of her travel is to spend time with her son and siblings and she intends to visit for several weeks over the Christmas holiday period to maximise her time with her son. She will stay with the review applicant and undertaking sight-seeing and other leisure activities with her family members in Australia. The Tribunal is satisfied that the visa applicant’s proposed duration of stay and intended activities in Australia are consistent with the purpose of her visit.

18. The delegate was concerned that the presence of the visa applicant’s family members in Australia may be an incentive for her to remain here at the end of the stay. The Tribunal is not satisfied that is the case, noting that while one of the the visa applicant’s children is studying in Australia, another son lives with the visa applicant and is a student in Vietnam. While the visa applicant has siblings in Australia, she also has siblings in Vietnam.

19. While not mentioned in any of the the material provided to the Tribunal by the Department, the visa applicant has drawn the Tribunal’s attention to a previous application for a student visa for her older son, which she says was refused on the basis that the delegate was concerned about the genuineness of her past employment with Saigon Tours. She explains that she started working for that company in March 2017, at which time the company had a different address to her actual location of work that appeared on the letter of support she provided to the department in 2019. She states that on this basis the Australian Consulate formed the view that her employment contract was not genuine, when in fact it was genuine.

20. The Tribunal notes that the applicant has provided significant documentation relating to her former employment at Saigon Tours, despite that employment ending in early 2020. That documentation includes a copy of the labour contract signed by the visa applicant and her employer in March 2017; a letter confirming her employment issued by Saigon Tours in April 2019 (provided for the purposes of the earlier student visa application referred to by the visa applicant); confirmation of the termination of that employment in January 2020 at the end of her contract and a copy of her Social Insurance Book. The Social Insurance Book shows the contributions made by Saigon Tours during the period of her employment from 2017 – 2020 in a manner consistent with the other employment documentation. The Tribunal accepts the applicant’s explanation of these events and draws no adverse inference from the refusal of the earlier student visa application.

21. Having considered whether the visa applicant has complied substantially with the conditions of the last substantive visa held; whether she intends to comply with the conditions to which the Subclass 600 visa would be subject and all other relevant matters, 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

22. 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.

    Alison Murphy
    Member