Prum (Migration)

[2024] AATA 351

Prum (Migration) [2024] AATA 351 (11 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sokunthea Prum

VISA APPLICANT:  Mr Sovathanak Prum

CASE NUMBER:  2302440

HOME AFFAIRS REFERENCE(S):          BCC2023/546937

MEMBER:Member Nathan Goetz

DATE:11 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 11 January 2024 at 1:48pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – incentives to return or remain – no information provided in response to tribunal’s invitation – no details of significant dates – work, property holdings and previous compliant travel to third countries – inconsistent evidence about employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(1), (2)(c), (3)
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicant a Visitor (Class FA) visa.

   BACKGROUND AND CRITERIA FOR THE GRANT OF THE VISA

2. On 1 February 2023 the visa applicant applied for the visa. The visa applicant is identified as a male citizen of Cambodia who was born on 10 August 1995 in that country where he is presently located.

3. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The visa applicant applied for the visa in the tourist stream.

4. On 14 February 2023 the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 600.211 of Schedule 2 to the Regulations. This provides the following:

   600.211 

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  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; and

   (b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c)  any other relevant matter.

5. On 22 February 2023 the review applicant applied to the Tribunal for review of the decision. The review applicant is identified as a female citizen of Australia who was born on 1 June 1984 in Cambodia and came to Australia holding a partner visa on 17 April 2011. She was subsequently granted a resident return visa before acquiring Australian citizenship on 18 July 2018. She is the visa applicant’s sister.

6. On 6 December 2023 the review was constituted to the Member.

7. On 15 December 2023 the Tribunal wrote to the review applicant for two reasons.

8. The first reason was to invite the review applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 2pm on 11 January 2024 via MS Teams so the review applicant could give evidence and present arguments relating to the issues arising in relation to the decision under review. The review applicant was directed to complete and return a ‘Response to hearing invitation’ form which was included with the hearing invitation.

9. The second reason was to invite the review applicant under s 359(2) of the Act to provide the Tribunal with information in writing by 29 December 2023. The invitation warned the review applicant that if the review applicant did not provide the information by 29 December 2023 or seek an extension of time to provide the information, the review applicant would lose the entitlement to appear at the Tribunal hearing.

10. On 20 December 2023 the review applicant provided a completed ‘Response to hearing invitation’ form which indicated that the review applicant would appear at the Tribunal hearing, but that the visa applicant would not appear. In the form, the review applicant indicated that she had documents that she intended to rely upon at the Tribunal hearing but did not specify those documents or indicate when they would be provided to the Tribunal.

11. By 29 December 2023, the review applicant did not provide the Tribunal with the information it requested. As a result, the Tribunal hearing was cancelled and the Tribunal made a decision on the review: ss 359C(1), 360(2)(c), (3) of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. In the visa application form, the visa applicant identifies that he is a male citizen of Cambodia presently located in that country. He identified that he was unmarried. He was born in that country on 10 August 1995. He claimed that the purpose of the visa application was a family visit, but provided no details of any significant dates for which the visa applicant needed to be in Australia. He indicated that he wished to be in Australia for a period of up to 3 months, with a planned arrival on 20 February 2023 and a planned departure on 1 May 2023.

13. The visa applicant identified that he would visit his sister in Australia. She is the review applicant. She was born on 1 June 1984 and is identified as an Australian permanent resident. Department records demonstrate that the review applicant came to Australia on a partner visa on 17 April 2011 and was granted a permanent partner visa on 15 January 2013. She subsequently held a resident return visa from 7 June 2018 and was granted Australian citizenship on 18 July 2018. He indicated that his sister and her husband would meet all costs of his stay in Australia. A bank statement for the period between 1 July 2021 to 31 December 2021 for an account held in the review applicant’s name was provided apparently to demonstrate her financial capacity to meet these costs.

14. Accompanying the visa application was a written statement dated 20 January 2023 from the review applicant. She wrote that she wished the visa applicant to visit her in Australia for four weeks and asserted that the visa applicant was currently working as a marketing manager and would return to his employment after returning from Australia, as well as indicating his proposed activities once in Australia.

15. The visa applicant declared that he understood that the visa if granted would not permit him to work. He also declared that he would not undertake a course of study in Australia. He declared that he had previously applied for a visa to come to Australia, but that visa was refused.

16. The visa applicant declared that he was employed from 15 January 2018 at Five Star Roof Tile Company Ltd, which is based in Kandal Stoeung District, Cambodia. In the delegate decision record, the delegate recorded that in this visa application, the visa applicant was identified as the Marketing Manager of Five Stars Roof Tile and held that position from 15 January 2018 until 21 July 2021, before recommending that position from 1 May 2022 to date. This came from a letter that the visa applicant submitted with the visa application. In support of this employment, the delegate was provided with:

    ·     A cheque in the amount of $1200 USD made payable to the visa applicant on 2 October 2022 from Mr Meng and Ms Koy Sophon

    ·     A cheque in the amount of $1200 USD made payable to the visa applicant on 2 September 2022 from Mr Meng and Ms Koy Sophon

    ·A cheque in the amount of $1200 USD made payable to the visa applicant on *date unclear* 2022 from Mr Meng and Ms Koy Sophon

17. The applicant was also provided with an account statement for the period of 1 July 2022 to 31 December 2022 for an account held at the ABA Bank in the name of the review applicant showing deposits consistent with the cheques.

18. The delegate also recorded that in a previous visa application, the visa applicant declared that he was employed as an executive director from 31 July 2021. The delegate indicated that this inconsistent information raised serious concerns about whether the visa applicant was genuine in his claimed intention to stay temporarily in Australia. Despite this issue being apparent from the decision record, the review applicant did not address this concern through a written statement accompanying the review application or provide a written statement addressing this before the Tribunal made a decision on the review.

19. The visa applicant also provided a copy of his Cambodian passport, which shows the following:

    ·     Entered Malaysia on 5 November 2022 and departed on 6 November 2022

    ·     Entered Malaysia on 6 November 2022 and exited on 8 November 2022

    ·     Entered Thailand on 30 September 2022 and departed on 4 October 2022

    ·     Two stamps for Cambodian immigration on 30 September 2022 and 4 October 2022.

20. Concerning property holdings in Cambodia, the visa applicant provided the following documents:

    ·     A document that was identified as a ‘title deed’ in a language other than English.

    ·     An English trnalsation of a document that appears to be a transfer of a grant of land from the applicants’ parents to the visa applicant in 2015.

    ·     An English translation of a document that appears to be a drawing of land location that belongs to the visa applicant in Kdan Roy village, Cambodia.

21. On 15 December 2023 the Tribunal wrote to the review applicant under s 359(2) of the Act and requested that information be provided to the Tribunal in writing. The Tribunal requested that it be provided with the names and dates of birth of the visa applicant’s spouse and children, including citizenship and country of current residence. The Tribunal thought it appropriate to obtain this information in the event that the visa applicant had subsequently gotten married/commenced a de facto relationship or had any children, as this may be an incentive for him to return to Cambodia. The Tribunal also requested information about the visa applicant’s incentives to return to Cambodia at the end of his visit to Australia, given that it was almost 12 months since the visa application was lodged, and the visa applicant’s circumstances concerning his employment may have changed. The Tribunal also requested information from the review applicant to identify any person that she had previously sponsored for a visitor visa to come to Australia. The Tribunal was interested in information about this because if the visa applicant had previously sponsored a person to visit Australia and that person had either complied or not complied with visa conditions, it may demonstrate, or not demonstrate, that the review applicant has a history of sponsoring people for visas who are either genuine temporary entrants to Australia or not genuine temporary entrants to Australia.

22. The review applicant provided no information in response to the Tribunal’s request for information, such as identifying that the visa applicant was still unmarried and had no spouse or children to identify, or provide information about the visa applicant’s current incentives to return to Cambodia at the end of the visit to Australia, or any information to demonstrate that the review applicant had sponsored, or not sponsored, any person for a visitor visa to come to Australia.

    FINDINGS AND REASONS

23. 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.

24. If the Tribunal finds that the visa applicant satisfies cl 600.211, the correct or preferable decision is to set aside the delegate decision refusing to grant the visa and remit the visa application back to the delegate for reconsideration with a direction that the visa applicant satisfies cl 600.211.

25. If the Tribunal finds that the visa applicant does not satisfy cl 600.211, the correct or preferable decision is to affirm the delegate decision refusing to grant the visa.

26. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

27. 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)).

28. The evidence is that the visa applicant has not previously travelled to Australia. Therefore, there is no Australian migration history to demonstrate whether the applicant has, or has not, previously complied with Australian visa conditions. Accordingly, this consideration is irrelevant.

29. 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.

30. The visa applicant acknowledged in the visa application form that the visa, if granted, did not permit him to work in Australia. The visa applicant also declared his intention to not study or train in Australia. However, there is no current evidence to demonstrate that these intentions remain current. Given there is no current evidence about the visa applicant’s employment (and the issue about his employment as flagged by the delegate, which is discussed under other considerations below), the Tribunal is not satisfied that the visa applicant’s intentions as declared in the visa application form to comply with the above conditions remain current at the time the Tribunal is making a decision on the review.

31. The failure of the Tribunal to be satisfied that the visa applicant intends to comply with the conditions that attach to the grant of the visitor visa is a factor that should be taken into account in finding that the visa applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa would be issued, namely a family visit.

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

33. The visa applicant indicated that he would not appear at the Tribunal hearing, despite the hearing invitation making it clear that the Tribunal wished to take oral evidence from the visa applicant. The Tribunal found that very odd, because the best person to tell the Tribunal about his intentions coming to Australia would be the visa applicant himself. The visa applicant’s unwillingness to participate in a Tribunal hearing suggests to the Tribunal that he does not genuinely intend to stay temporarily in Australia for the purpose of the visa because if he did, the Tribunal is satisfied that he would make himself available to answer the Tribunal’s questions.

34. The Tribunal has also considered the inconsistent evidence about the visa applicant’s employment. No explanation has been provided to address this inconsistency. While the Tribunal accepts that deposits have been made into a bank account in the name of the visa applicant, in the circumstances where there is inconsistent evidence about the visa applicant’s employment in Cambodia, the Tribunal places to weight on those payments as genuine payments for employment. In combination with the fact that no current evidence was provided about the visa applicant’s employment as an incentive for him to return to Cambodia at the conclusion of his stay in Australia, the Tribunal is not satisfied that the visa applicant is employed and is not satisfied that his employment would be an incentive for him to return to Cambodia at the conclusion of his visit.

35. The visa applicant is unmarried and has no children. The only family present in Cambodia appear to be his parents. The Tribunal accepts that evidence has been provided to demonstrate that the visa applicant has been transferred property in Cambodia from his parent(s), but the Tribunal is not satisfied that this property holding means that the visa applicant will return to Cambodia.

36. There is no evidence that the review applicant has previously sponsored a person to come to Australia and that person has been granted a visa and complied with those conditions. The Tribunal is satisfied if there was any such evidence, the review applicant would have provided it to the Tribunal as requested. In those circumstances, the Tribunal gives no weight to the assertions that the visa applicant genuinely intends to stay temporarily in Australia that inevitably accompany a sponsorship for the visitor visa.

37. The Tribunal has also considered the fact that the review applicant has provided no current evidence about her ability to financially support the visa applicant during his time in Australia. The material that was previously provided is now dated and the Tribunal is not satisfied about the review applicant’s current financial circumstances as demonstrating that the visa applicant would come to Australia and not have to work to support himself during his stay in Australia.

38. Given all of the circumstances, the Tribunal finds that there is not enough current evidence to demonstrate that the visa applicant genuinely intends to stay temporarily in Australia.

    CONCLUSION

39. For the above reasons, the Tribunal finds that the visa applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa would be issued.

40. Therefore, the visa applicant does not satisfy cl 600.211.

    DECISION

41. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Nathan Goetz

    
    

    Member