Sangchat (Migration)

[2023] AATA 3270

Sangchat (Migration) [2023] AATA 3270 (2 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tanayot Sangchat

VISA APPLICANT:  Ms Nuttaporn Saelu

CASE NUMBER:  2214238

HOME AFFAIRS REFERENCE(S):          BCC2022/2959030

MEMBER:Naomi Schmitz

DATE:2 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 02 October 2023 at 1:44pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visa applicant visiting her husband – review applicant’s frequent trips to Thailand – family and business commitments in Thailand – previous cancellation for not attending a course – maintaining a long-distance relationship – previous compliant visits – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 24 September 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 30 July 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 that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

5. On 26 September 2022, the review applicant applied to the Tribunal for a review of the refusal decision and provided a copy of the delegate’s decision record to the Tribunal.

6. On 3 August 2023, the Tribunal invited the applicant under s 360(1) of the Act to appear at a Tribunal hearing by Microsoft Teams video-link commencing at 9:30 am (NSW time) on 18 August 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

7. In support of the application for review the representative provided to the Tribunal:

   a.Legal submissions;

   b.Photographic evidence - visa applicant at place of employment,‘Vijitsin Shop’;

   c.Business invoices;

   d.Business bank with a closing balance on 7 August 2023 of AUD6,863.09;

   e.Property title deed;

   f.Photographic evidence of the visa applicant and review applicant’s wedding;

   g.Visa applicant’s savings account with a closing balance on 6 June 2023 of THB393,575.86 equivalent to AUD16,900; and

   h.The review applicant’s savings account with a closing balance on 10 August 2023 of AUD24,194.00.

8. The review applicant appeared before the Tribunal on 18 August 2023 via Microsoft Teams technology to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who appeared by Microsoft Teams video-link from Bangkok, Thailand. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The Tribunal Member extended the hearing by one hour to allow the review applicant to present his case and is satisfied that he was accorded with procedural fairness. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

9. On 18 August 2023, post-hearing the Tribunal received further submissions from the representative which reflected oral submissions made at hearing including:

   a.The country information put at hearing was outdated and whilst it is acknowledged that Thailand is never going to be a country as stable and terrorism-free as Australia, the political and social situation has been relatively calm;

   b.The review applicant’s frequent trips to Thailand do not necessary mean that if the visa applicant is allowed to visit Australia, she would stay in Australia beyond the visa validity;

   c.The visa applicant is unable to produce business records, including evidence of taxation returns and profit and loss statements, as annual accounts are not prepared;

   d.The visa applicant's father is getting to an age where he wants to step-back from the business, and the visa applicant is now taking over the running of the business and therefore cannot leave the business in Thailand for extended periods of time; and

   e.The Tribunal consider remitting the refusal, with a direction that a 'no further condition' be imposed, which would address the concern that the Tribunal may have that the visa applicant could apply for an onshore Partner visa application which is contradictory to the purpose of the Visitor visa.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. The visa applicant is a 34-year old citizen of Thailand who resides in Tawewattana, Bangkok Thailand. In the present case, the visa applicant seeks the visa for the purposes of visiting her husband, the review applicant, who is an Australian citizen, and currently resides in Sydney, Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

13. At the time of application, the visa applicant requested a Visitor visa for up to three months, with a planned arrival date of 1 September 2022 and a departure date of 20 September 2022. At hearing, the visa applicant gave evidence that she planned on staying between two and three weeks and would travel alone. The review applicant gave evidence of the same and stated the visa applicant could not stay longer due to running a busy business in Thailand.

14. In the visa application, the visa applicant claimed she would finance the visit herself, using profits from her business, along with financial support from the review applicant. At hearing the visa applicant claimed that she would pay the airfare herself and that the review applicant will take care of everything else. The review applicant stated that he could take of the visa applicant financially.

15. At hearing the visa applicant gave evidence of her migration history, including that she first arrived in Australia on 8 July 2012 on a Student (Subclass 573) visa. She was subsequently granted a further Student (Subclass 572) visa on 27 May 2013. The visa applicant had one brief departure, departing on 25 July 2013 and returned to Australia on 19 August 2013. On 17 February 2015, the visa applicant’s Student visa was subsequently cancelled. The Tribunal Member asked the visa applicant about the circumstances which lead to the cancellation, including breach of a visa condition. The visa applicant confirmed it was due to failing to attend school. The cancellation of the visa applicant’s Student visa was noted in the delegate’s decision record, in addition to a refusal of a previous Visitor (Subclass 600) visa on 23 January 2019, both having been declared in the Visitor visa application made on 30 July 2022. The visa applicant confirmed that she last departed Australia on 6 August 2015.

16. 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)). As noted in [15] above, the visa applicant previously failed to comply with the conditions of her Student visa by failing to attend school. The Tribunal places adverse weight on the applicant’s previous visa non-compliance.

17. 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; and

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

18. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201 given she has applied for a Visitor visa for the purposes of visiting her husband. The Tribunal is also satisfied that based on financial information referred to in [7] above and the oral evidence at hearing that there are sufficient financial resources available, without the visa applicant resorting to work.

19. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal has considered the purpose of the visit referred to in [12] above. This appears to be a valid reason to apply for a visitor visa to Australia.

20. Information before the Tribunal indicates that the visa applicant and review applicant registered their marriage in Thailand on 4 February 2022 and married on 17 June 2023 in Thailand. At hearing, the visa applicant gave evidence that she first met the review applicant in 2013 whilst in Australia when the parties worked at the same Thai restaurant. The visa applicant gave evidence that she considered herself to be in a relationship with the review applicant since 2016. Since the visa applicant’s departure on 6 August 2015, the review applicant has visited the visa applicant in Thailand approximately eight to nine times, including twice one year. The review applicant gave evidence of the same. She stated that she speaks to the review applicant every night.

21. The Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside of Thailand including details regarding dates and travel durations. The visa applicant replied that she has visited many counties all for travel including China, Japan (twice), Georgia, Turkey, Amsterdam, Indonesia, Loas and Singapore (February 2010). The visa applicant did not provide details as to dates and travel duration.

22. The Tribunal Member asked the visa applicant where her family members reside, including in Australia, Thailand, and any other country. The visa applicant confirmed that her only family in Australia is her husband, the review applicant. In Thailand, the visa applicant has a mother, father, a sister, a brother, and extended family. She confirmed she has no other family who reside in any other country.

23. The Tribunal Member asked the visa applicant about what her future plans were with the review applicant. The visa applicant replied that they have ‘lots of plans together’, including ‘starting a family’, ‘traveling together’ and getting a property which they would live in together. The Tribunal Member asked the visa applicant when she intended on starting a family. The visa applicant replied that she would undertake health checks next year and would like to ‘try’ for a baby before turning 40 years.

24. The Tribunal Member asked whether it was proposed that the parties would maintain a long-distance relationship and live apart forever and continue to apply for Visitor visas. The visa applicant replied in the affirmative ‘yes for now’. The Tribunal Member indicated to the visa applicant that this did not sound realistic given the visa applicant’s oral evidence that the parties had registered their relationship 18 months ago, were married, had plans on starting a family, buying a property, and travelling together which showed that parties clearly want to be together. The visa applicant subsequently claimed that for the next two to three years they planned on having a long-distance relationship and would continue to apply for tourist visas whilst they both ‘work on work arrangements’. The Tribunal Member asked what the visa applicant meant by her evidence. The visa applicant replied that she has to run a business [her father’s business in Thailand] and post [stock] and talk to customers.

25. The Tribunal Member indicated that the visa applicant’s claims that the parties are happy to continue living separately were undermined by medical evidence that the review applicant is mentally distressed and suffering from an Adjustment Disorder as a result of prolonged separation from the visa applicant. The Tribunal Member suggested to the visa applicant that the review applicant’s health condition may act as an incentive for her to remain in Australia rather than visit temporarily. The visa applicant claimed that they ‘miss each other’ and that is why they want to ‘meet more often and spend time together by visiting one another’.

26. The Tribunal Member asked the visa applicant whether she had applied for an offshore Partner (Subclass 309) visa, and if not, why not. The visa applicant confirmed she had not because of her family business which she claimed needed to be run properly before she moved to Australia.

27. The Tribunal Member asked the visa applicant whether she intended on applying for an onshore Partner visa whilst in Australia. The Tribunal Member suggested that it was highly probable given the parties were married, wanted children and due to the review applicant’s significant travel history to Thailand in which the parties have spent considerable time together. The visa applicant denied she would apply for an onshore Partner visa stating she would not do that as she has to take her parents to see the doctor every year.

28. The Tribunal Member also asked the review applicant what his future plans were with the visa applicant and whether it was proposed that they would continue to maintain a long-distance relationship and keep applying for visitor visas. The review applicant claimed that for the moment the parties would maintain a long-distance relationship and could not reside together and only wanted to visit one another due to work commitments and the visa applicant having to care for her parents. He claimed the parties had not planned when they would reside together permanently. He stated his wife is now 34 years and that they ‘should start trying to have children’. The Tribunal Member indicated that given the parties were married and the review applicant’s evidence that he frequently visits Thailand, the Tribunal Member had difficulty accepting that the parties planned on maintaining a long-distance relationship and it is human nature that spouses would want to live together. The review applicant replied that ‘It’s alright we speak every day. I do video call. I see her quite often’.

29. The Tribunal Member indicated to the review applicant that according to medical evidence before the Tribunal, that the review applicant suffers from an Adjustment Disorder and that he is mentally distressed due to being separated from his wife. The Tribunal further notes that the review applicant’s mental condition was used as a basis for a ‘priority request’ to the Tribunal to have his case heard urgently. The Tribunal Member suggested that this undermined the parties’ claims that they were happy to maintain a long-distance relationship and appeared to be a reason why the visa applicant may wish to remain permanently in Australia rather than temporarily. The review applicant replied that the visa applicant’s temporary visit would make him feel better and that she would have to return home to care for her family and run her business. 

30. The Tribunal Member asked the review applicant if he had sponsored the visa applicant for a Subclass 309 Partner visa and if not, why not. The review applicant replied in the negative, citing cultural reasons, and that the parties had to get married first before they moved in together. The Tribunal Member indicated that she did not understand the review applicant’s evidence, given the parties were already married, marrying in June 2023. The review applicant did not respond.

31. The Tribunal Member asked the review applicant whether the parties intended on applying for an onshore spousal visa during the visa applicant’s visit. The Tribunal Member put to the review applicant that it was highly probably, given the parties are married, want children and the amount of time the parties had spent together. The review applicant claimed that they could not make the application at the moment as the visa applicant has to care for her parents and run a business.

32. The Tribunal has taken into account the visa applicant’s incentives to return to Thailand at the end of her proposed visit and relied upon the following factors:

    a.The visa applicant works in a family retail business ‘Vijitsin Shop’ selling school bags and has done so since September 2020.[1] The visa applicant’s father commenced the business in 1983. The visa applicant claimed that the business cannot operate without her;

    b.The visa applicant is a part-owner of a house, purchasing the property with her siblings on 15 December 2021. The visa applicant’s mother, father, two siblings and the applicant reside at the property;

    c.The visa applicant has a substantial family network who resides in Thailand referred to in [22] above;

    d.The visa applicant and her husband have lived and worked separately for extended periods of time and are comfortable with a long-distance relationship; and

    e.The parties do not have immediate plans to have children which if they do might be an incentive for the visa applicant to remain in Australia at the end of her proposed visit.

    [1] Delegate’s decision record.

33. In relation to the visa applicant’s employment, the Tribunal Member indicated to the visa applicant that whilst the Tribunal accepted the business was operative and that the visa applicant worked there, in relation to her claims that the business cannot operate without her, that the business had been in existence for 40 years, before the visa applicant was born and had operated successfully during the visa applicant’s extended absence in Australia. The Tribunal Member suggested this information did not support the visa applicant’s claims and if she wished to say anything in response. The visa applicant claimed that she is the only person who talks to customers and chooses new products.

34. The Tribunal Member explained to the visa applicant that business invoices submitted and referred to in [7c] did not provide a global overview of the financial state and profitability of the visa applicant’s family business. They were therefore of limited value to the Tribunal and that the Tribunal would require various years of taxation returns to undertake an accurate assessment. The visa applicant did not respond. Post hearing the Tribunal was advised that the visa applicant could not produce any business records.

35. The Tribunal Member explained that as a relevant factor pursuant to cl 600.211(c), that the Tribunal may consider the situation of a visa applicant’s home country, Thailand, as this may appear to be a disincentive to return. The Tribunal Member referred to the latest DFAT country information report which details that in recent years Thailand has been subject to political and economic instability with military coups overthrowing elected governments including in 1991, 2006, and May 2014.

1. The security situation in Thailand is unpredictable as a result of the political situation with violent political demonstrations and protests in Bangkok. While large scale terrorism attacks are rare, terrorism is an ongoing concern in Thailand. The countries relatively permissive visa requirements and porous borders make it vulnerable to exploitation as a transit hub for terrorists moving in and out of the country. In recent years there have been a number of terrorism attacks that have caused deaths and injuries including in the visa applicant’s hometown of Bangkok, these include:

   a.In August 2019 a serious explosion occurred in public places throughout Bangkok including outside several government buildings. The bombings which caused seven injuries coincided with an ASEAN summit taking place in Bangkok;

   b.In May 2017, improvised explosive device attacks at a Bangkok military hospital and the National Theatre injured 26 people; and

   c.In August 2015, a bomb blast at Bangkok’s Erawan Shrine killed 20 and injured 125. The bombing was allegedly carried out by Uighur people smugglers but remains unsolved.

2. The ongoing influence of the military in the recently elected government and political uncertainty continue to dampen business confidence. Tourism is the main source of Thailand's income. Thailand’s dependence on tourism and external markets means that it is economically vulnerable.[2]

   [2] Department of Foreign Affairs and Trade Country Information Report Thailand – dated 10 July 2020.

3. In contrast, the security, political and economic situation in Australia is more stable. In light of these differences, the Tribunal Member asked the visa applicant and review applicant why these issues would not be a disincentive for the visa applicant to return.

4. The visa applicant replied that she wanted to visit her husband and that they want to be together. The review applicant replied that the visa applicant’s business has nothing to do with the problems identified by the Tribunal Member. He stated that the visa applicant’s business sells school bags and that students always need school bags as they are a necessity. The Tribunal Member indicated to the review applicant that he had not engaged with the security information and gave him a further opportunity to respond. The review applicant replied that terrorism would not affect the visa applicant’s business and that the visa applicant sells bags all over the country and has students everywhere, not just in Bangkok.

   Findings

5. The Tribunal has considered all matters carefully. The Tribunal accepts that the visa applicant has a valid reason to visit Australia to see her husband, the review applicant. The visa applicant has travelled to Australia previously and failed to comply with the conditions of her Student visa and accordingly, the Tribunal places adverse weight on the visa applicant’s previous non-compliance. Whilst the Tribunal accepts that the visa applicant has previously undertaken the travel identified in [21] above, limited weight is placed on this previous travel, given the country circumstances in the majority of the countries identified (save for Japan and Amsterdam) are not comparable to those of Australia and given the visa applicant does not have any family who reside on a permanent basis in any of those countries. Therefore, limited weight is place on this prior travel history.

6. Whilst the Tribunal accepts that the visa applicant is presently employed in her family business and the business is operative, the Tribunal is not satisfied that it constitutes a strong financial incentive to return as there are no credible and reliable business or taxation records to corroborate the visa applicant’s and review applicant’s claims that it is a successful business. The Tribunal considers the business invoices to be of low probative value, given they are isolated and do not show the overall business income and profitability, including over various years. Further, information before the Tribunal indicates that the visa applicant has only recently become involved in her family’s business, with it operating in her absence and prior to her birth. The Tribunal is not convinced that the business cannot operate without the visa applicant.

7. Although the Tribunal accepts that the visa applicant is a part-owner of a property and has family who reside in Thailand, this is outweighed by the presence of the visa applicant’s husband in Australia. The Tribunal is not satisfied that the visa applicant’s caring responsibilities constitute a strong incentive to return due to there being other available family members to care for her parents and no credible or reliable medical evidence to suggest that her parents suffer from any ill health and require medical treatment. The Tribunal considers these to be self-serving assertions and places limited weight on them.

8. The Tribunal rejects the visa applicant and review applicant’s oral claims that the parties are content on living separate lives, in separate countries and plan on applying and paying for multiple visitor visas to maintain a long-distance relationship. This is based on circumstantial evidence of the parties’ relationship which indicates that the parties want to be together, including that they have been in a long-term relationship since 2016, registered their relationship in February 2022, married in June 2023, plan on having children, plan on purchasing a property and living together, plan on undertaking travel together, and the review applicant’s significant travel history to Thailand. These claims are also incongruent with medical evidence submitted to the Tribunal which show that the review applicant suffers from an Adjustment Disorder as a result of prolonged separation from the visa applicant. Further, the review applicant’s Adjustment Disorder was used as a basis for requesting the review application be prioritised at the Tribunal. The review applicant’s mental health issues and evidence that his wife’s presence would ameliorate these problems, is all the more reason why the visa applicant may not return to Thailand after her stay.

9. The Tribunal has considered the representative’s request for a no further stay condition referred to in [9e] and notes the visa applicant has applied for the visa in the Tourism stream with the visa conditions outlined [17] above. The Tribunal does not have a discretion as to any further conditions imposed by a delegate at the Department of Home Affairs. The Tribunal notes the visa applicant is free to apply for other visas with such conditions, including the Visitor (Subclass 600) Family Sponsored visa. Even if such a visa condition were to be imposed, the Tribunal is not satisfied that the visa applicant would comply. An adverse migration history may be worthwhile incurring in return for the visa applicant remaining onshore in Australia, with her husband and the security and better economic conditions that Australia offers.

10. The Tribunal is also not satisfied that Thailand’s country situation would act as a strong inducement to return, noting the security situation and poor economic conditions from the most recent DFAT country information report.

11. 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

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

    Naomi Schmitz
    Member