Soth (Migration)

[2017] AATA 2640

Soth (Migration) [2017] AATA 2640 (19 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Chanthuon Soth

VISA APPLICANTS:  Mr Bunthoeun Soth (1)
Ms Chheav Ly (2)

CASE NUMBER:  1619537

DIBP REFERENCE(S):  BCC2016/3324369

MEMBER:Ian Garnham

DATE:19 September 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Visitor (Class FA) visa for reconsideration, with the direction that the 1^st visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

DECISION:The Tribunal affirms the decision not to grant the 2^nd visa applicant a Visitor (Class FA) visa.

Statement made on 19 September 2017 at 9:17am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 – Sponsored Family stream – First visit overseas – Visa applications previously rejected – Visit relatives and conduct tourist activities – Evidence of assets – Credible witnesses – First applicant’s genuine intention to stay temporarily in Australia – Second applicant not a genuine temporary entrant

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 Schedule 2 cls 600.211, 600.211(a)-(c), 600.612, 600.231 Schedule 8 Conditions 8101, 8201, 8503, 8531

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 2 November 2016 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants; Mr Buntheoun Soth (visa applicant 1) and Ms Chheav Ly (visa applicant 2) applied for the visas on 5 October 2016. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 (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 visas, on the basis that the visa applicants did not meet cl.600.211 because they were not satisfied that the period of stay sought (3 months) was consistent with the applicants’ self – employment and the provision of care to two dependent children in Cambodia and they were also concerned that the applicants had not demonstrated; …significant assets or savings history to cover the period of stay sought.  

5. The review applicant appeared before the Tribunal on 24 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the 1^st visa applicant and in person from a friend of the review applicant, Ms Nay Sok.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

7. The review applicant was represented in relation to the review by her registered migration agent.  A submission dated 15 March 2017 was also provided to the Tribunal.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration with respect to the 1^st visa applicant and the decision under review should be affirmed with respect to the 2^nd visa applicant.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicants genuinely intend 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.

10. In the present case, the visa applicants seek the visas for the purposes of visiting relatives and conducting tourist activities.  These are purposes for which a visa in the Sponsored Family stream may be granted: cl.600.231.

11. The review applicant is 34yo and came to Australia in May 2006 on an offshore partner visa.  She became a permanent resident on 20/11/08 and became an Australian citizen on 07/03/12.  She remarried in June 2011 in Cambodia and she lives with her husband (who she sponsored) and their 4yo child.  The review applicant has six siblings; five siblings including the visa applicant live in Cambodia along with the applicant’s parents.  The review applicant’s 31 year old sister lives with the applicant’s parents and the other 4 siblings, including the visa applicant live independently.

12. The review applicant said that all of the siblings and the visa applicants’ children live close by one another and are in regular contact with one another’s families.

    cl.600.211(a):

13. 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.

14. The 1^st visa applicant is a 45yo brother of the review applicant and the 2^nd visa applicant is his 49yo wife.   They have 5 children between the ages of 15 and 29 years old.  The 2 oldest children live with their maternal grandparents and the 3 youngest (including a dependent 18yo & 15yo) live with their parents (the visa applicants).   

15. The review applicant said that neither of the visa applicants has travelled overseas before.  In 2015 the visa applicant applied for a visa to come to Australia as a tourist but the application was rejected.  However, other family members have previously travelled to Australia.

16. The review applicant’s youngest sister came to Australia on 09/03/13 on a former subclass 679 (Sponsored Family Visitor) visa that ceased to have effect 09/06/13 and she departed on 05/06/13.  She then came again on 18/11/14 on a subclass 309 offshore partner visa and was granted a permanent subclass 100 visa on 30/11/16.

17. The review applicant’s mother also came to Australia with the review applicant’s youngest sister on a former subclass 679 (Sponsored Family Visitor) visa that ceased to have effect 09/06/13 and she also departed on 05/06/13.  Both of the review applicant’s parents then travelled to Australia on 31/10/15 on subclass 600 tourist visas that ceased to have effect on 29/01/16 and they both departed on that day.  More recently, on 01/06/17 the review applicant’s parents were granted subclass 600 tourist visas that cease to have effect on 26/10/17 and they arrived in Australia on 26/08/17.

18. While the visa applicants have never travelled to Australia I acknowledge that the review applicant’s parents and his youngest sister have both conducted previous compliant travel to Australia. 

    cl.600.211(b):

19. The Tribunal must also consider whether the visa applicants intend to comply with the conditions to which the Subclass 600 visas would be subject. 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.

20. The visa applicants have presented significant further information to the Tribunal to demonstrate the hard work they have done in Cambodia to establish varied income sources for their family.  The documentary and photographic evidence they have provided demonstrates they have the following assets and income sources in Cambodia:

    ·Ownership of 3 real properties including; dwelling (412 m²), farmland and sheds (3,139 m²) and farmland and sheds (2,635 m²)[1]

    ·Documents signed by the chief of their village attesting to their residency, occupations (selling foods) and income in their village in Cambodia[2]

    ·Bank account for visa applicant (1) showing a balance of approximately $5,000 (US) as of 02/09/16[3]

    ·Photographic evidence of livestock ownership, a mushroom production business and a party hire business.[4]  In addition, the village chief has provided a statement attesting to the visa applicant’s ownership of these assets.[5]

    ·One Van and a motor bike that are used in operating the businesses  

    [1] At FF: 81, 71 & 76

    [2] At FF: 43 & 46

    [3] At F: 63

    [4] At FF: 7 – 16 (DIBP file)

    [5] At FF:5,6 (DIBP)

21. The Tribunal accepts that by Cambodian standards the above assets represent significant wealth and diverse income sources for the visa applicants.  Confirmatory information has been provided to the Tribunal that further attests to the visa applicant’s ownership of these income sources.     

22. Given the age of the applicants and their diverse business interests in Cambodia I am satisfied that they would be unlikely to seek work while in Australia.  I am also satisfied for the same reasons that it is unlikely that they would seek to study for more than 3 months.

23. The visa applicant’s compliance or otherwise with the further conditions that would be applied to their visas (conditions 8503 & 8531) is closely related to the incentives that apply for the visa applicants to return to Cambodia and are discussed below including further relevant matters.

    cl.600.211(c):

24. The Tribunal has also considered all other relevant matters.

25. The delegate was concerned that the visa applicants were intending to leave their then, 14 year old daughter for 3 months while they visited Australia.  The review applicant said that the child was not without support and that she has her siblings, aunty and grandmother living nearby who would support and provide for her if she required assistance.

26. The review applicant and the 1^st visa applicant said that the visa applicants’ oldest son works in the businesses and they would also hire someone if need be to operate the businesses.  The review applicant also said that the applications are for 3 months but that it may be necessary for the visa applicants to come for a shorter time if their businesses require their personal attention.

27. In addition, the review applicant said that her family were anticipating a planned family celebration in Cambodia to celebrate the old age of their father.  The Movement Details confirm that the review applicant and her younger sister travelled overseas together on 25/07/17 and the review applicant returned on 25/06/17 and her sister returned on 03/07/17.  Presumably this travel by the review applicant and her sister was to Cambodia to celebrate their father’s old age as they advised would occur during the hearing.  This recent travel serves to add credibility to all of the applicant’s evidence, and, in particular, the evidence of the review applicant and the 1^st visa applicant that the review applicant just wants to provide the visa applicants with an opportunity to spend time with her and experience Australia.      

28. The Tribunal accepts that the visa applicants have extensive family members who will be remaining in Cambodia, should the visas be granted.  Most of all, they have five children who will provide a significant incentive for them to return.  In addition, with the new documentation, provided to the Tribunal, is a statement by the chief of their village acknowledging that the couple plan to travel to Australia temporarily to visit the review applicant and her family.[6]

    [6] At F: 49

29. I consider the visa applicants have provided all of the information that they possibly could have to demonstrate that their intention is a genuine temporary stay in Australia.  Nevertheless the fact that that both parents are seeking to come to Australia at the same time represents a greater likelihood of the possibility that they may seek to leave their business interests to their mostly adult children in Cambodia; and then seek to gain permanent residence in Australia before then seeking to bring further family members to join them.    

30. It was explained to the review applicant and 1^st visa applicant that joint applications are sometimes viewed more favourably if adults in a relationship travel to Australia at different times.  By so doing, the likelihood that one partner will seek to stay in Australia diminishes and the incentive to return to the home country for the travelling partner increases.  In response the review applicant said that if a visa was granted separately to her brother or sister-in-law they would accept this and either one would come for a shorter holiday than the proposed 3 months.  In addition, the visa applicant also agreed that if either he or his wife were granted a visa they would travel to Australia for a visit independently.

31. In this case I consider it is appropriate for the direct family member, the 1^st visa applicant to be provided with an opportunity to visit his sisters and experience Australia independently from his wife the 2^nd visa applicant.   

32. For the above reasons the Tribunal is satisfied that the 1^st 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.

33. For the above reasons the Tribunal is not satisfied that the 2^nd 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

34. The Tribunal remits the application for Visitor (Class FA) visas for reconsideration, with the direction that the 1^st visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

35. The Tribunal affirms the decision not to grant the 2^nd visa applicant’s Visitor (Class FA) visa.

    Ian Garnham
    Member