SUWANLA (Migration)

[2017] AATA 167

SUWANLA (Migration) [2017] AATA 167 (1 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms SAMER SUWANLA

VISA APPLICANT:  Miss Marisa Suwanla

CASE NUMBER:  1604979

DIBP REFERENCE:  BCC2015/3752090

MEMBER:Rosa Gagliardi

DATE:1 February 2017

PLACE OF DECISION:  Melbourne        

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

Statement made on 01 February 2017 at 6:28pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – cl 600.211 –  Genuine temporary entrant – Young expectant mother – Lack of evidence indicating commitment and financial position from applicant’s partner – Stronger family ties in Australia – Multiple entry basis – No greater incentive to return 

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 600.211, 600.231, 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 15 February 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 8 December 2015. 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 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 visa on the basis that the visa applicant did not meet cl.600.211 because he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant/sponsor, Ms Samer Suwanla, appeared before the Tribunal on

   
   

   26 October 2016 to give evidence and present arguments. The Tribunal also received oral from her husband, Mr Mario Canale as well as the visa applicant overseas.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   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 family members. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   Background

10. The applicant is twenty years of age and a national of Thailand.  The applicant is seeking to visit her mother, the sponsor, Ms Samer Sunwanla, her step-father, Mr Mario Canale as well as her younger step-brothers. At the time of application the applicant stated that she wanted to travel to Australia for 6 months within a 12 month period on a multiple entry basis.

11. The applicant in a statement to the Tribunal dated 24 October 2016 stated that she lived with her brother and sister in Thailand until she was about 9 years of age and then her mother, the sponsor, travelled to Australia with her new partner to settle here.  After the sponsor’s arrival in Australia, the applicant was cared for by her maternal grandmother and that side of the family.  The applicant has claimed that after her mother separated from her father, she only saw her father occasionally as he was largely absent from her life. 

12. The applicant’s mother now has three children with her current partner, Mr Mario Canale, and they are aged 12, 10 and 5.

13. The applicant is expecting a child with her boyfriend, and the child is due to be born in April 2017.  While the applicant does not live with her boyfriend, they have been girlfriend and boyfriend since 2015.  It is claimed that the relationship is now serious and they plan to marry.  In support of these claims the applicant has submitted a statement from her partner and his family stating that they will take responsibility for the care of the applicant and the baby and would devote their greatest effort to the best interests of the mother and child.

14. The applicant claims in her statement of 24 October 2016 that once the baby is born she wants to visit her family here. She also wants her mother’s advice about the baby, especially in the early days.  If she is breastfeeding she intends to bring the child but she is not sure yet.  Of course if she travels without the baby she claims that she will want to return to Thailand as well as to be with her partner as she is in a committed relationship with him.

15. The sponsor in her statement dated 24 October 2016, states that she tries to visit Thailand every year to see her three eldest children from her previous marriage, although the pressure would be alleviated if the applicant could visit her in Australia.  The sponsor has stated that she would like to be able to visit the applicant for the delivery of the child but she is unsure she will be able to do so.  She has many obligations in Australia and April 2017 is the busiest time for her family in Australia.  That is why she would like the applicant to visit her.

16. At hearing as well as in writing evidence has been provided to indicate that the sponsor’s husband has been running farming businesses and the sponsor is required to work on the farm.  The sponsor’s children in Australia will be on holidays during December/January and she would need to take care of them while her husband looks after the farms and crops, including preparing her children for school.  The sponsor has written that her husband’s family live outside Wandin and won’t be able to help with the children during this time and his parents who are elderly have their own strawberry crops to attend to. The sponsor also gave evidence at hearing that the applicant would return to Thailand because she has a future with the father of her child.

17. The applicant is currently living with a niece of the sponsor in Bangkok when she works for Chester Grill as a waitress, away from her home area in Surin.  It is also argued that the applicant is very close to the sponsor’s mother (her grandmother) and that she helps her when she is unwell.  Furthermore, when she is not working she lives with her grandmother in Surin.

18. The sponsor’s husband, Mr Mario Canale, gave evidence at hearing and in a statement dated 24 October 2016.  He echoes the sponsor’s statements about the sponsor wanting to see her child and grandchild more regularly.  He also emphasises that it would not be possible for him to look after his farms as well as the children during the busy times were the sponsor to go overseas. Mr Canale also emphasises that the applicant is not at risk of overstaying as she has a partner in Thailand who will care for the applicant and their child.

19. Photos of the applicant and her partner have been provided.

    cl.600.211(a)

20. 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)).

21. The applicant has travelled to Australia in early 2015 and the Tribunal places weight on the fact that she has not overstayed her visa at that time.  In terms of whether she has complied with her conditions, such as not working, including assisting her mother on her farms, the Tribunal is unable to be certain as this is something that is difficult to monitor.  However, for the purposes of this review the Tribunal accepts that during her visit to Australia in 2015 the applicant was fully compliant with her visa conditions. 

22. The Tribunal considers, however, that the applicant’s life circumstances are now completely different in that she will have a child to support and the Tribunal has concerns that these changes in circumstances coupled with the request for multiple entries, could point to the applicant wishing to be in Australia for other than a genuine intention to stay temporarily for the purpose for which the visa is granted. 

23. It has been argued that the applicant’s commitment to her partner is testimony that she is committed to building a future in the long-term in Thailand with him and her as yet unborn child.  The applicant’s desire to visit Australia on a more regular basis in the aftermath of the birth of her child, when it would be expected that she and her partner would be making efforts to consolidate their home life to provide for themselves, belies the applicant’s, the sponsor’s and Mr Canale’s, as well as her partner’s statements, that the applicant has an intention to build a future in Thailand and that her partner represents a strong incentive for her to return there. 

24. The applicant has stated that she does not, as yet, know whether she will travel with her child.  It would not, however, be inconceivable that she would after the birth want to travel with her baby to Australia.  In doing so, the Tribunal considers that her strongest affective ties would all be in Australia, being the sponsor and her baby.  Given the applicant is prepared to be away from her partner and father of the child and that it is a priority for her to travel to Australia previously at a sensitive time in her life, the Tribunal is not satisfied that the applicant’s partner represents an incentive for her to return to Thailand, particularly as her child would have access to quality medical and other services in Australia. 

25. Further, it is unclear who would look after the child in the applicant’s absence after the birth, although it is being claimed that in fact the applicant’s partner and his family will support her and the child.  Little evidence is before the Tribunal to indicate whether the partner of the applicant works and whether he would indeed be in a position, were the applicant to come to Australia on several occasions, to look after the child.  The applicant’s partner’s work circumstances are also relevant in terms of whether the Tribunal can be persuaded that he and the applicant are in a position to provide for the child and whether they are building a future together.  It was claimed at hearing that the applicant’s partner is also young, being 21 years of age and that he works as a farmer with his family.

26. While written assurances by the applicant’s partner have been provided that he and his family will support the applicant and her child, little information has been provided about their economic circumstances and their ability to provide material support to the applicant and child.

27. The Tribunal also understands that the visa applicant’s sister and others in her family may have travelled to Australia and that there is no adverse migration history for the family in general.  Nonetheless, the Tribunal considers that it is required to assess the applicant’s own personal circumstances which in this case take precedence over the applicant’s and others’ past conduct.

28. The applicant’s previous compliance with her visa conditions during her visit in 2015 does not, therefore, outweigh the Tribunal’s concerns about the applicant’s intention to stay in Australia temporarily for the purpose for which the visa is granted currently. 

    cl.600.611(b)

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.600.612):

    ·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.

30. The Tribunal places weight on the fact that the sponsor and her husband have provided a bank account which demonstrates that as at 30 September 2016, they had $20,200.48 in savings.  The couple’s business management account holds in excess of $200,000 at
    30 September 2016.  This would mean that the sponsor and her husband would be able to care for the applicant and her baby, even though farming income can be variable and subject to external and unpredictable conditions. 

31. Nonetheless, the applicant’s own personal circumstances are not so secure. She does not own property and according to her own statement, sometimes lives with a cousin in Bangkok.  It is unclear when the baby is born where the applicant and her partner and child might reside, but presumably they will do so with either the applicant’s grandmother or the family of her partner, although the paucity of evidence about such fundamental matters leads the Tribunal to have concerns as to whether the applicant and her partner have an intention to settle as a family unit in Thailand. 

32. The applicant states that she is a waitress in Bangkok and that she has been working at Chester Grill on and off for three or four years and that she had a break from Chester Grill “last year” as she had to look after her grandmother.  It was also the school vacation period and the restaurant employed younger and cheaper staff.  She recommenced working there around three or four months prior to her statement in October 2016.  In her statement the applicant has also claimed that she works about six days a week and that it is a good job and that she is saving up for when the baby arrives.

33. The Tribunal has difficulty accepting that the applicant’s work in Thailand is indicative of her genuinely intending to stay temporarily in Australia for the purpose for which the visa is granted.  In the first instance, if she is going to leave her job to come to Australia more regularly, her tenure in that position, if she ever had any, would be compromised. 

34. Further, the Tribunal has limited evidence of the applicant having a regular income or savings or that her employer is going to accommodate her regular visits to Australia, or indeed that there is provision for maternity leave.  Hence, at a time when the Tribunal would have expected that the applicant would be looking to create security in her professional and personal life, she is instead proposing to put her work and her ability to provide for the child in jeopardy.  This is particularly so as the applicant has provided little evidence to indicate the financial position of her partner, and whether he is in able to assist make a home for the claimed family unit. 

35. The applicant’s family in Australia have the capacity for the applicant to work on their farms to make money at a time in her life when the Tribunal is not confident the applicant is in a strong financial position for either her or her partner to raise her child.  The applicant’s desire to enter Australia on multiple occasions does not appear to indicate she simply wishes to see her mother and step-family in Australia and then leave, particularly given her circumstances.  This is what the department intended when it stated that her intended visits were not consistent with the purpose for which she has requested the visa.  Her desire to enter Australia on multiple occasions, given she will be tending to a baby, points to some other reason other than her visiting Australia and seeking support from her mother in the aftermath of the birth. 

36. In terms of whether the applicant is entitled to a substantive visa other than a protection visa, the Tribunal does not consider it implausible that she might try to change her status onshore to provide a secure future for her child in the presence of her mother and step-family in Australia, and where she would always be able to be in unskilled work in her mother’s and step-father’s farms. 

37. The Tribunal understands that the applicant may have biological siblings in Thailand, her cousin in Bangkok, as well as her grandmother in Surin.  The Tribunal is, however, not persuaded that these relatives represent a greater incentive for her to return to Thailand, rather than remain in Australia with her mother and her step-father who are successful business persons and who would be able to offer the applicant and her child greater opportunities. This is particularly so when the applicant’s partner’s ability to provide for her and her child is in question.

    cl.600.211(c)

38. The Tribunal has also considered all other relevant matters (cl.600.211(c)) and notes that for all the assertions about the fact the applicant will abide by her conditions and return to Thailand, little probative evidence has been submitted to illustrate that the applicant’s circumstances are such, by way of employment, for example, that her greatest priority is settling into family life in Thailand or that she will take concrete steps to establish a family unit with her partner overseas.  The Tribunal considers that the evidence, points instead, to the applicant having limited solid connections in Thailand that would persuade the Tribunal that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

39. The Tribunal has also taken into account that the sponsor has stated that the applicant should be permitted to travel to Australia because it would not be possible for her to visit the applicant often overseas due to the business and the need to look after her three children with Mr Canale in Australia.  The Tribunal notes, however, that according to the sponsor’s own statement she has in the past been to Thailand and while the Tribunal understands that it will create some difficulties for her, the Tribunal must be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

40. 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

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

    Rosa Gagliardi
    Member