QUACH (Migration)

[2019] AATA 4401

QUACH (Migration) [2019] AATA 4401 (10 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr VAN PHONG QUACH

VISA APPLICANT:  Mrs THI MY HANH QUACH

CASE NUMBER:  1807659

HOME AFFAIRS REFERENCE(S):           BCC2018/708189

MEMBER:Kira Raif

DATE:10 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 10 October 2019 at 3:16pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) Sponsored Family stream – genuine intention to stay in Australia temporarily – employment and non-dependant relatives not sufficient incentive to return – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.612

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 7 March 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 January 1963. She applied for the visa on 8 February 2018. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he 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 applicant appeared before the Tribunal on 10 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 seeks the visa for the purposes of visiting a family member 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 delegate noted that the visa applicant had only non-dependent relatives in Vietnam, being her parents and siblings. The delegate acknowledged the applicant’s employment for Uyen Hung General Grocerie but formed the view that such employment would not provide sufficient incentive for the applicant to return to Vietnam. The delegate noted that the visa applicant expressed an intention to visit Australia for three months for a family visit and tourism purposes and found that the applicant’s reason for travel was inconsistent with the requested length of stay and may indicate an intention to travel to Australia of reasons other than genuine temporary stay. The delegate also noted that the applicant did not provide any evidence of previous travel or previous compliance with visa conditions.

11. The review applicant provided a number of documents to the Tribunal on 1 October 2019. The review applicant states that he previously sponsored his cousin in 2015. The review applicant states that the visa applicant has assets and a long term stable job, which would be an incentive for her to return to her home country, as well as three children, grandson, mother and siblings. The review applicant provided a number of photographs in support of these claims.

12. In oral evidence the review applicant told the Tribunal that he wants to sponsor his sister to visit her two siblings in Australia and their families. The review applicant said that he applied for his sister to visit for three months, if permitted. The review applicant said that his sister has four other siblings in Vietnam, three children aged between 24 and 35, and grandchildren, as well as an elderly mother. He said that the visa applicant and her children, as well as their mother, live in the same house.  

13. The review applicant told the Tribunal that his sister works for a grocery shop as a clerk. When asked how the visa applicant could take three months off work, he said that there are many staff who can replace her and the employer promised that the vacancy will only be kept for three months.

14. The Tribunal has considered whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

15. The visa applicant has not travelled to Australia previously and there is no evidence of her compliance or non-compliance with visa conditions in the past. The review applicant told the Tribunal that the visa applicant only travelled outside of Vietnam once, when she went to Thailand for five days and while there is no evidence that she has not complied with the immigration requirements during that visit, the Tribunal notes that the five day visit to Thailand for tourism would be quite different to a three months visit to Australia where the visa applicant has close family ties.

16. The review applicant’s evidence is that the visa applicant has significant family ties in Vietnam. The Tribunal accepts that normally, such family ties would constitute a strong incentive for the visa applicant to return. However, the Tribunal notes that the visa applicant’s children are all adults and may not need the visa applicant’s presence in the same country. The Tribunal is of the view that while the presence of family in Vietnam may constitute an incentive for the visa applicant to return to Vietnam within the visa period, the presence of family in Australia may equally constitute an incentive for the visa applicant to remain in Australia.

17. The Tribunal acknowledges the visa applicant’s ongoing employment. However, the Tribunal also notes the review applicant’s evidence that the visa applicant will be given three months’ leave from her job and that she can be ‘easily replaced’ by other staff. As for the review applicant’s claim that the job will only be kept for the visa applicant for three months, there is no satisfactory evidence to support the claim that employment would not be available to the visa applicant beyond that period, or that the visa applicant would be unable to find other employment, should this employment be no longer available. As such, the Tribunal does not consider that the visa applicant’s employment would constitute an incentive for her to return to Vietnam. Neither does the presence of an elderly parent, given that there are other siblings living in the same household or nearby. The review applicant told the Tribunal that when the visa applicant travels to Australia, somebody else can take care of their mother.

18. The review applicant states that the visa applicant has family, a house, work and an elderly mother, all of which would cause her to return to Vietnam on time. The Tribunal does not accept that this is so because, as noted above, the review applicant’s evidence indicates that alternative arrangements would be made for the lengthy period of her intended stay in Australia. She would arrange for another person to take care of the mother and to do her job. As for the house, such asset can be transferable.

19. The review applicant told the Tribunal that he will not allow his sister to overstay her visa or make another application onshore. It is unclear to the Tribunal how the review applicant would be able to enforce that undertaking.

20. The review applicant indicated that he could put up a security of $10,000.

21. Overall, the Tribunal has formed the view that the visa applicant may have significant incentives to remain in Australia after the end of permitted stay, in breach of condition 8531. The Tribunal has formed the view that the lengthy period of preferred stay – three months – is not consistent with the visa applicant’s stated commitments in Vietnam and suggests that the visa applicant may have an intention of establishing residence in Australia and remaining beyond the period of validity of her visa. The Tribunal is not satisfied the visa applicant will comply with condition 8531. The Tribunal is not satisfied the visa applicant intends to comply with the conditions to which her visa would be subject. Consideration of other relevant matters is set out above.

22. The Tribunal is not satisfied the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal is not satisfied she meets cl. 600.211.

    Conclusion

23. For the above reasons the Tribunal is not 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 not met.

    DECISION

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

    Kira Raif
    Senior Member