TANG (Migration)

[2021] AATA 355

TANG (Migration) [2021] AATA 355 (8 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs DIEM QUYNH TANG

VISA APPLICANT:  Ms BICH TUYEN TANG

CASE NUMBER:  1902441

HOME AFFAIRS REFERENCE(S):          CLD2019/10538977

MEMBER:Hugh Sanderson

DATE:8 January 2021

PLACE OF DECISION:  Sydney

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 08 January 2021 at 4:33pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant visit – strong family ties with Australia – visa applicant has re-married – current Parent visa application – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

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 18 December 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 applied for the visa on 6 December 2018. 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 (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 the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

   Background

5. The visa applicant is a citizen of Vietnam and is currently 44 years old. She is single and disclosed that she had previously worked as a nail technician but since 2016 was a housewife. She did not disclose she had any income but claimed to have 350 million Dong in savings and owned a parcel of land. Her parents are deceased. She has four siblings who live in Vietnam. Her only child is her daughter who is the review applicant.

6. The visa applicant previously travelled to Australia on a Visitor visa arriving on 9 December 2016 and departing on 5 March 2017. There is nothing to indicate that the visa applicant did not comply with her visa when she was in Australia at that time.

7. The review applicant is 26 years old. She was married to Phuong Than Nguyen Vo. The review applicant was granted a Subclass 300 Prospective Marriage visa in 2014 and travelled to Australia on that visa. She was then granted a Subclass 820 Partner (Temporary) visa in 2014 and a Subclass 801 Partner (Residence) visa in 2018. Since first arriving in Australia she has travelled overseas on six occasions. She works as a nail technician, claiming to earn $60,000 per annum. She has a child, Jayden, who was born in 2016. She provided details of her savings showing about $20,000 in savings.

8. When the visa applicant applied for the visa, she claimed the purpose of wanting to visit Australia was to be able to spend time with her daughter and her family. She noted that she had previously applied for Visitor visas on two prior occasions in 2017 which had been refused. It was claimed that the review applicant and her family were planning to travel to Vietnam on 28 January 2019 to celebrate Tet and would be returning on 13 February 2019. It was hoped that the visa would be granted by that time so that the visa applicant could travel to Australia with the review applicant and her family.

9. The delegate who considered the application noted the following:

   ·The visa applicant said she was a housewife with no indication that she had any income;

   ·The assets that the visa applicant claimed she had were of little value;

   ·The visa applicant had strong family ties with Australia which would be an inducement for her to stay in Australia; and

   ·There was little indication of the visa applicant having previously travelled.

10. Based on these factors, the delegate was not satisfied the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. The delegate found the applicant did not meet the criteria in cl.600.211 and refused the application.

    Information to the Tribunal

11. The review applicant provided further information to the Tribunal showing the following:

    ·The visa applicant was married on 31 October 2019 and she was now living with her husband and stepchild;

    ·The visa applicant’s husband had a business operating car rental for tourists;

    ·The visa applicant and her husband had savings of in excess of AU$10,000;

    ·The visa applicant has previously travelled to Thailand in February 2018 and June 2019; and

    ·The review applicant had divorced her husband.

12. The review applicant appeared before the Tribunal by telephone on 7 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. 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 by her registered migration agent.

13. The review applicant confirmed that she and her former husband had divorced each other. He had moved out of the former matrimonial home and was now living with his parents while the review applicant remained living in the rented accommodation, she had previously live in with her husband, with their child. The review applicant said that she had no significant assets or investments.

14. The review applicant said that her mother met her current husband a few years before their marriage in October 2019. The review applicant said that she returned to Vietnam to attend her mother’s wedding. She said the daughter of her mother’s husband was living with them but was not sure of the details of those arrangements.

15. The review applicant said that her mother would comply with any Visitor visa granted to her as she did not want to jeopardise the other visa application she has made for a Parent visa. She said that as she is working in Australia she is able to support her mother and her mother would have to return to Vietnam as she has her own small business to run there. Her mother’s husband and step-daughter were also staying in Vietnam during any visit she had to Australia.

16. The visa applicant said that she had known her current husband for about one or two years before they were married. She said they started living together after their marriage on 30 October 2019. She said her husband’s business included transporting tourists throughout Vietnam. The business was based in Haiphong in the north of Vietnam while she lived in the south of Vietnam. She said that he would often be away for five or seven days before staying with her in her home for about the same length of time. This depended upon his work. His daughter was still attending school in Haiphong and staying with her paternal family there. She said that during school holidays she travelled to her home and stayed with her and her father.

17. The visa applicant said that she applied for a Parent visa in October 2018. She has since amended that application to include her husband for the grant of the visa. She said that she would not jeopardise that visa application by failing to comply with any Visitor visa granted to her. She said that if she were granted a Visitor visa her husband and stepdaughter would remain living in Vietnam while she was visiting her daughter in Australia.

18. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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.

20. In the present case, the visa applicant seeks the visa for the purposes of visiting her daughter who has the right to reside permanently in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

21. 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)).

22. The visa applicant has previously travelled to Australia on a Visitor visa. She was granted the visa on 22 July 2016 and remained in Australia from 9 December 2016 until 5 March 2017. There is nothing to indicate that the visa applicant did not comply with all the conditions of the visa granted to her.

23. 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(2)):

    ·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.

24. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

25. There is nothing to indicate that the visa applicant has any intention or desire to work or engage in any study in Australia. The visa applicant has applied for a Parent visa sponsored by her daughter. This was not referred to in the delegate’s decision. This is discussed below.

26. The delegate noted the fact that the visa applicant did not have any visible means of support in Vietnam and she did not have a regular income. The visa applicant has since married her husband. The review applicant travelled to Vietnam to be able to attend the wedding of her mother and stepfather. The visa applicant’s husband and his nine-year-old child are registered as living in her home. The visa applicant’s husband has a business engaged in car rentals and driving tourists. This business is based in Haiphong with the visa applicant’s husband spending extensive periods of time away from the visa applicant. His daughter only spends school holidays in the visa applicant’s home as she attends school in Haiphong. The visa applicant and her husband have some savings with which the visa applicant is able to access to afford to travel to Australia to visit her daughter.

27. The fact that the visa applicant has remarried and now has a husband and stepchild who will remain in Vietnam during any visit she has to Australia must be given significant weight when considering whether the visa applicant genuinely intends to remain temporarily in Australia. The financial security her husband provides her, and in particular his income, must also be given significant weight.

28. The review applicant is in paid employment and has access to funds to be able to support her mother during any visit in Australia. The review applicant has recently divorced her husband and has the primary care of her child. This provides another reason why both the visa applicant and the review applicant would want the visa applicant to visit the review applicant in Australia.

29. The Tribunal places significant weight on the fact that the visa applicant has previously travelled to Australia and has complied with the conditions of that visa granted to her, including departing Australia within three months of her arrival.

30. The visa applicant has applied for a Parent visa and stated that it is her desire to migrate to Australia. At the time of the application she had not married her husband and her husband was not included in that application. She now claims that she has amended the application to include her husband and stepdaughter as members of her family unit in that application. She stated that she would comply with her Visitor visa as she did not want to do anything that would jeopardise the granting of her Parent visa.

31. The Tribunal has considered all the circumstances of the visa applicant both individually and cumulatively. The fact that she has applied for a Parent visa indicates that she has a desire to remain in Australia and may, if she thought it would be of advantage, remain in Australia after the end of any permitted stay. Against this there are many factors which would indicate the applicant does genuinely intend to remain temporarily in Australia. The Tribunal accepts that she is now married and as her husband and his daughter will remain living in Vietnam if the visa applicant is granted of Visitor visa this will provide a significant incentive for her to return to Vietnam. She has previously travelled to Australia on a Visitor visa and complied with the conditions of that visa. Her daughter is recently divorced and it is understandable why she would wish to spend time with her daughter and grandson in Australia. The visa applicant has, with her husband, sufficient funds to be able to travel to and spend up to three months in Australia. She also has the financial support of her daughter. Both the visa applicant and the review applicant believe that if the visa applicant does not comply with the conditions of any Visitor visa granted to her this would jeopardise the processing and grant of any Parent visa she has applied for.

32. Overall, the Tribunal is satisfied that the visa applicant will comply with any Visitor visa granted to her and that she genuinely intends to remain temporarily in Australia for the purpose for which the visa is granted.

33. For the above reasons the Tribunal is 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 met.

    DECISION

34. 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.

    Hugh Sanderson
    Member