Po (Migration)

[2024] AATA 2100

Po (Migration) [2024] AATA 2100 (4 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Piset Po

VISA APPLICANT:  Mr Ratanak Po

CASE NUMBER:  2306890

HOME AFFAIRS REFERENCE(S):          BCC2023/2319685

MEMBER:Tania Flood

DATE:4 June 2024

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 June 2024 at 3:47pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting family – review applicant and his father provided consistent and credible oral evidence – visa applicant is essentially dependent on his parents – visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 Home Affairs on 5 May 2023 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 14 April 2023. 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 (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 visa was refused because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia.  The delegate concluded that the visa applicant did not meet cl 600.211.

5. The review applicant appeared before the Tribunal on 31 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s father overseas.   The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

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

   BACKGROUND AND INFORMATION PROVIDED TO THE DEPARTMENT

7. According to information contained in the application for a Visitor visa the visa applicant is a forty-two-year-old Cambodian citizen.  He indicated he is single and resides in Battambang.  He indicated he would be travelling to Australia to attend a family wedding and would be accompanied by his parents.  He stated that he lives with his parents and has access to his parent’s funds through a joint bank account. 

8. The review applicant is the visa applicant’s brother.  He is an Australian citizen. 

9. The following documentation was attached to the application for the Visitor visa:

   -    Bank records of the review applicant.

   -    Payslips of the review applicant.

   -    Rental record of the review applicant.

   -    A Family Record Book.

   -    A current lease agreement for a property in Battambang.

   EVIDENCE GIVEN TO THE TRIBUNAL

10. In an (undated) letter to the Tribunal the review applicant states that he is the biological brother of the review applicant.  He states that even though his brother has no employment he has access to all his parent’s funds and has been involved in the leasing of his parents properties.  He states that he and his brother are the only children in the family and they share a close bond.  He states that since he moved to Australia he has been sharing news of his life in Australia with his brother and he hopes his brother will have an opportunity to see firsthand where he lives.  Further, it will make his parents happy to travel to Australia with his brother.  He states his willingness to provide a security bond in order to facilitate the grant of the visa.

11. In a statutory declaration made on 15 May 2023 the review applicant states that he will ensure that his brother abides by visa conditions and will take full responsibility before the law for any visa breach.

    Tribunal hearing

12. The review applicant appeared before the Tribunal on 31 May 2024 and gave evidence in support of the case.  His testimony is summarised as follows:

13. He was born in Cambodia.  He married an Australian citizen and is now an Australian citizen himself.  He subsequently divorced in 2022.  He is currently single and has no children.   He has an aunt and uncle from his mother’s side residing in Australia as well as his mother’s aunty and her husband.  Those relatives have lived in Australia for over twenty years.

14. He is the owner operator of a takeaway shop.  He has owned the business for more than a year. 

15. His brother applied for the Visitor visa to attend their second cousin’s wedding.  His parents were granted visas at that time but did not attend the wedding when his brother was refused the visa.  They visited Australia later in September 2023 and returned to Cambodia after spending approximately five to six weeks in Australia.   This was their second visit to Australia.  They first visited Australia to attend his wedding.  On both occasions his parents returned to Cambodia before their visas expired.

16. In 2021 he applied for Contributory Parent visas for his parents.  The applications are pending.  If the visas are granted his parents plan to move permanently to Australia. 

17. The visa applicant lives with his parents and his mother’s three sisters in their home in Battambang.  His aunties are all single and they have lived with his family since he was a young boy.  His parents used to operate a grocery business in the nearby market.  They have now retired but they keep a smaller business running from their home.  His brother and his aunties all work in this business.  His mother was a teacher and she received a retirement pension.  His parents also own a rental property from which they earn an income. 

18. If his parents are granted Contributory Parent visas his brother will remain living with his aunties.  His family have discussed and made plans for the future should they be granted the visas.  The plan is to rent the house and use this income and the income from the rental property to sustain his brother and his aunties.  His parents also own two plots of land and using a combination of their savings and his aunt’s savings they intend to build a smaller house for the aunts and his brother to live in.   

19. His brother has only ever worked in the family business.  He has a speech impediment and did not complete his schooling.    His brother is single and has no children.  He has never travelled abroad.

20. If his brother is granted the visa he will travel to and from Australia with his parents.  The plan is to reunite the family in Australia.  He will need to reapply for Visitor visas for his parents as the last visa they were granted was a single entry.   His brother and parents intend to stay for about four to five weeks in Australia.  His parents will cover the costs of his brothers travel to Australia and he has also offered to help with the cost.   It is possible at this stage for his brother and parents to all travel together because his aunties are still able to run the family business in their absence.

21. His brother is nominally a Buddhist.  He is not a member of a political party or involved in any political activity.  He has never encountered any problems with the government of Cambodia. 

22. His brother only wants to visit Australia and he will personally guarantee that he returns to Cambodia and will suffer any legal consequences should he not do so. 

23. He and his parents are prepared to provide a security bond in order to facilitate the grant of his brother’s visa.

24. The Tribunal also took evidence from the review and visa applicant’s father.  He confirmed that he and his wife wish to travel to Australia with the visa applicant so that he can have the opportunity to see where his brother is living.  He said they only plan to travel to Australia for about one month and then they will all return together to Cambodia.

25. The review and visa applicant’s father confirmed that the plan is for the visa applicant to remain living in Cambodia with his aunties if he and his wife’s Contributory Parent visas are approved. 

26. The Tribunal asked the review applicant and his father if they are intending to apply for the visa applicant to move to Australia permanently in the future.  They replied that if that option is legally available to them they will consider it. 

27. The Tribunal asked the review and visa applicant’s father if there is an intention for his son to remain in Australia should he be granted a Visitor visa.  He assured the Tribunal that this would not occur as he needs to return to Cambodia and continue helping to run the family business. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. 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.

29. 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 Sponsored Family stream may be granted: cl 600.231.

30. 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)).

31. The visa applicant has never travelled to Australia.  The review applicant was granted a Higher Education Sector visa (TU573) on 16 September 2015.  The visa was valid until 3 August 2018.  Using this visa he entered and departed Australia a number of times.  On 23 May 2018 he was granted a Bridging visa and on 27 August 2019 he was granted a Partner visa (UK820).  On 18 September 2020 he was granted a Permanent Partner visa (BS801).  He is now an Australian citizen.

32. 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.

33. The review applicant and his father provided consistent and credible oral evidence to the Tribunal and no concerns arose regarding the truthfulness of their testimony in the course of the discussions held with them during the hearing.

34. Based on the available information the Tribunal accepts that the visa applicant is a forty-two- year-old man with a speech impediment who lives at home with his parents, does not speak English and has never worked outside of his family’s business.  He is planning a short stay in Australia in the company of his parents for approximately four weeks to visit his brother.  His parents and his brother have indicated that they will be responsible for his financial upkeep in Australia if he is granted a Visitor visa and the available evidence indicates they have the means to do so.  In the circumstances the Tribunal is satisfied that the visa applicant will not work or engage in study or training in Australia if he is granted a Visitor visa.  The Tribunal is satisfied that he will comply with conditions 8101 and 8201 if he is granted a Visitor visa.

35. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

36. The Tribunal acknowledges that the visa applicant is essentially dependent on his parents.  Further, based on the review applicant’s testimony, and Departmental records, the Tribunal accepts that the review applicant applied for Contributory Parent visas for his parents on 14 September 2021.  The Tribunal accepts that if the parents are granted the visas they intend to relocate to Australia. 

37. During the hearing the Tribunal discussed with the review applicant and his father the implications for the visa applicant of his parents relocating to Australia.  The review applicant and his father separately testified that the intention is that the visa applicant will remain living with his aunties in Cambodia and will continue to work alongside his aunties in the scaled down family business whilst ever it continues to operate.    The review applicant further explained that the family intends, at a point of time in the future, to build a smaller home on an existing plot of land, where the visa applicant and his aunts will live when the business eventually ceases to operate.  He also explained that the family plans to rent the existing home, which is strategically located in Battambang, and will use the income from this and the rental home venture to sustain the visa applicant and his aunts.

38. Given the visa applicants current circumstances the Tribunal found the testimony of the review applicant and his father to be plausible.  The Tribunal considers, based on their credible testimony, that the family have discussed, considered and planned for the eventuality of the parents relocating to Australia if their Contributory Parent visas are approved with a view to ensuring the visa applicant continues to have a stable existence in Cambodia in their absence.   

39. Notwithstanding the above, the Tribunal notes that Contributory Parent Visa applications typically have a long wait time and there is nothing before the Tribunal to indicate that the parent’s proposed relocation to Australia is in any way imminent.  During the hearing the review applicant and his father indicated that while they await the outcome of these applications there is an opportunity for the visa applicant to travel to Australia with his parents and for the whole family to be reunited.  As the parents’ permanent move to Australia is not imminent the Tribunal finds it plausible that they will return to Cambodia after a short stay in Australia and that logically in the circumstances the visa applicant will accompany them and will continue living and working with them until such time as the outcome of the Contributory Parent Visa applications is known.  Having regard to the visa applicant’s characteristics and the review applicant’s personal circumstances, the Tribunal does not consider it feasible or indeed foreseen, that the visa applicant would remain behind in Australia when his parents return to Cambodia. 

40. While the visa applicant has not travelled abroad his parents have both visited Australia twice and the Departments records reveal that they complied with the conditions of their visas.  As the visa applicant intends to travel to and from Australia with his parents the Tribunal places weight on their history of compliance with Australia’s migration laws.

41. The Tribunal has also placed weight on the review applicant’s willingness to provide a security bond in order to facilitate the grant of the visa for his brother. 

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

43. 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

44. 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.

    Tania Flood
    Member