Sarun (Migration)

[2017] AATA 1646

Sarun (Migration) [2017] AATA 1646 (31 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Somaly Sarun

VISA APPLICANT:  Mr Prathna Hou

CASE NUMBER:  1607025

DIBP REFERENCE(S):  FA600

MEMBER:Stavros Georgiadis

DATE:31 August 2017

PLACE OF DECISION:  Adelaide

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 31 August 2017 at 7:28pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Genuine temporary stay – Family members previously complied with visa requirements – Acknowledged risk to future visa applications – Earnings and business commitments in Cambodia

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 600.211, cl 600.221, cl 600.222, cl 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 Immigration on 16 March 2016 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 applied for the visa on 29 February 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (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 considered that the visa applicant does not genuinely intend to stay temporarily in Australia as a tourist being the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 11 January 2017 to give evidence and present arguments. The Tribunal was assisted by an interpreter of the Khmer and English languages.

6. The review applicant was represented in relation to the review.

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 his sisters in Australia and their families (house blessing ceremony in March 2016) and sightseeing in Western Australia where members of his family reside. Visiting a close relative is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

11. The visa applicant is a 24 year old male (DOB 16 October 1992) who has not visited Australia previously.  There is no evidence therefore the Tribunal to provide support or otherwise, about whether the visa applicant has complied substantially with the conditions of any previous substantive or bridging visa.

12. 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):

    ·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.

13. In addition to the documents previously supplied to the Tribunal and the Department, the Tribunal has had regard to the oral evidence provided by the review applicant at the hearing as well is the written submissions received on 6 January 2017 in support of the application.

14. The Tribunal accepts that the purpose of the visa applicant’s travel to Australia for the proposed period of three months from 15 March 2016 to 15 June 2016 was to visit close relatives.  In particular the submission is that he wished to visit his sisters and their husbands and his niece and nephew.  The evidence is that a special housewarming party in the presence of a Buddhist Monk had been arranged for that visit.  The submission is that the visa applicant’s intention was not to undertake care for an infant whilst he was visiting his relatives in Australia (as the Delegate had suggested) as he is not trained for such activity.  The review applicant emphasised that she is trained in day care and also referred to the availability of day care centres for this purpose should the visa applicant’s relatives have needed to avail themselves of such services.

15. The visa applicant submits that there is no reason not to return to Cambodia citing motivation to comply with Australian immigration rules and to not place at risk to himself or any member of his family at the cost of making a return to Australia in the future more difficult.  The submissions refer specifically to other members of his family having travelled to Australia from Cambodia and that they followed all immigration requirements.  This has included his sister who has visited more than once previously.  The Tribunal also notes that the applicant’s mother visited Western Australia recently and returned to Cambodia before the visa expired having complied with all Australian immigration requirements. The Tribunal notes this points to a propensity by family members to comply with immigration requirements when visiting Australia and given the absence of any prior visit by the visa applicant, there is nothing to suggest any history of non-compliance or intention of non-compliance in relation to the present application. 

16. The Tribunal notes the Delegate’s comments that the invitation by the review applicant and her husband to the visa applicant for his attendance at a housewarming party in Perth is accepted as genuine.  The Tribunal notes also the submission and evidence that there was a large gathering on the day of the party and indeed, the disappointment that the visa applicant was not able to be present on the day.  Notwithstanding that this event has now passed, the submission is that the visa applicant is still interested in visiting his relatives in Australia as other events span the Cambodian calendar including various festivals that are celebrated throughout the year, even by those relatives in Australia despite the fact that they live outside of Cambodia.

17. The review applicant’s evidence and submissions are that her brother will stay only for a period of three months as initially intended and also intends to abide by all immigration conditions imposed on his visa should he be successful in this application.  She reiterates that his visit is genuinely temporary only for the period of three months to include sightseeing in Western Australia in addition to visiting the members of his close family.  The Tribunal accepts that the visa applicant is motivated to comply with his visa conditions so that he does not risk any future application to visit Australia.

18. The Tribunal considered the Delegate’s comments and also the circumstances generally regarding the incentives and motivation for the visa applicant to return to Cambodia after the period of intended stay in Australia.  The Tribunal accepts from the oral evidence and documents before the Department and the Tribunal that for approximately 2 ½ years the applicant held a role of assistant manager of You Ku Co Ltd, a juice café in Cambodia, and that he was granted leave for the purposes of his visit to Australia.  In respect of evidence regarding his work and earnings, the oral evidence is that he received payments of approximately $200 per month but had substantial savings in the order of $6,000 in his bank account at the time.  Evidence of funds in the visa applicant’s bank account totalling $6,262.01 were provided and noted by the Delegate but also that a short transaction history may indicate the funds were deposited over a short period of time and not commensurate with the claimed occupation and earnings. 

19. The Delegate noted also that prior to these earnings and deposits the total account balance was $1,065.01.  The Tribunal does not consider this is conclusive evidence to amount to an unsuccessful application by the visa applicant as it accepts the oral evidence and submissions that many people in Cambodia do not keep money in bank accounts preferring to hold money themselves at home as they do not wish the government to be aware of their financial affairs and all the funds they have in their possession. The submission is persuasive in that “this is just the way people do things in Cambodia and this is no secret”.  The Tribunal places weight on the evidence that the visa applicant held concurrent employment as a Community credit officer for approximately four years, not the 12 months referred to by the Delegate in the decision record.  The evidence which the Tribunal accepts, is that he worked as a credit officer, from approximately January 2011 to September 2015 in which role he earned about US$250 per month.  This goes some way also to explaining the higher level of savings referred to above.

20. The Tribunal accepts that the applicant’s family and in particular his mother, who lives in Kampong Chhang in Cambodia owns a farm from which some income is derived.  The Tribunal notes that his mother is widowed and relies for some support and care on the visa applicant who also resides in Cambodia.  The Tribunal accepts that the visa applicant has some financial capacity to provide such support.  The Tribunal accepts the evidence that the visa applicant is no longer employed with You Ku (juice café) or as a credit officer, but that from approximately November 2016 he commenced his own energy drink wholesale business which has continued to expand its operations from Kampong Chhang, Cambodia. 

21. At the hearing the Tribunal carefully questioned the review applicant about particulars of the visa applicant’s business and accepts that the visa applicant supplies energy drinks known as ‘Chang Dang’ to small outlets such as shops, kiosks, grocery stores and the like having established a wholesale business to supply these retailers in his district which was described as ‘a monopoly’ in that province.  The Tribunal accepts that the visa applicant has five sales representatives for his province and that this requires a considerable amount of administrative effort on his part to manage these representatives and other aspects of his business.  The Tribunal places weight that this would act as a substantial incentive to return to Cambodia to look after the affairs of his new business at the end of the three month stay in Australia.  The submission is that whilst in Australia, his mother and cousin (together with the visa applicant’s input and directions from Australia) will attend to the business.  Overall from this, the Tribunal accepts that the visa applicant will comply with condition 8531 - must not remain in Australia after the end of the permitted stay.

22. The Tribunal places weight on the evidence that the visa applicant will oversee the management of his business whilst in Australia as he is able to perform some limited functions over the Internet and by telephone through liaising with his employees back in Cambodia and his family members there.  In this regard the Tribunal accepts also that the applicant will not breach condition 8101 and will not be employed in Australia given he will be otherwise engaged in visiting, touring and somewhat occupied with his own business affairs from abroad.  For essentially the same reasons, the Tribunal accepts that he will not breach the requirement to not engage in study or training in Australia for any period greater than three months and will therefore, comply with condition 8201 on the visa.

23. Noting that members of his family have successfully returned to Cambodia at the end of their visit to Australia, there is nothing before the Tribunal to suggest any non-compliance with condition 8503 - not entitled to a substantive visa, other than a protection visa, while remaining in Australia and the Tribunal is satisfied that the visa applicant will not breach this condition on his visa.

24. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The Tribunal has had regard to the oral evidence provided at the hearing that the visa applicant has a three-year-old daughter from his relationship with a former spouse and that he maintains his relationship with that child.  The Tribunal accepts that this would act as a strong incentive for him to return to Cambodia at the end of his stay in Australia.  Together with the circumstances that he provides support for his widowed mother in the same area as he lives in Cambodia all act as a strong incentive to return there, considered collectively with his newly developed business there that appears to be growing and succeeding by all accounts.

25. For the above reasons the Tribunal is satisfied, on balance, 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

26. 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.

    Stavros Georgiadis
    Member