Thi (Migration)

[2018] AATA 1613

Thi (Migration) [2018] AATA 1613 (20 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Nguyen Thi

VISA APPLICANT:  Mr Anh Tuan Bui

CASE NUMBER:  1809683

DIBP REFERENCE(S):  BCC2018/1434627

MEMBER:Rachel Westaway

DATE:20 April 2018

PLACE OF DECISION:  Melbourne

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 20 April 2018 at 3:32pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Whether the applicant genuinely intends to stay in Australia temporarily – Extended history of complying with visa conditions – Compelling compassionate circumstances – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, Schedule 8, Conditions 8101, 8201, 8503, 8531

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 6 April 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 28 March 2018. 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 it was considered that the applicant did not genuinely intend to stay temporarily in Australia for the purpose for which the visa was granted.

5. The evidence before the Tribunal was sufficiently persuasiveness combined with the significance of the circumstances underpinning the application that the Tribunal has been able to proceed to a decision “on the papers”.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting his mother who is in palliative care. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. 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)).

   Background

10. The initial visa application was made by Ms Thi Au Mai Nguyen, a 62 year old female from Vietnam and included in the application was her husband Mr Anh Tuan Bui. They have previously travelled to Australia together. Mr Anh Tuan Bui is 64 years of age. Mr Bui has travelled to Australia eight times since 2004.

11. The stated purpose of this visit was to visit Mr Bui’s mother as she is terminally ill and in palliative care. They stated that she may die any time. Provided with the application were letters from the hospital and the family doctor.  Mr Bui’s mother has suffered a heart attack and has advanced cancer.

12. The planned date of arrival was 30 March 2018.

13. The application was refused. The decision outlines that the delegate did not accept that the applicants genuinely intended to stay temporarily in Australia for the purposes for which the visa is granted. Regard was given to whether they have substantially complied with conditions on their last held visas, whether there is an intention to comply with conditions on the visa which is the subject of this review and any other relevant matter.

14. The decision record contained vague reasons. It stated that whist the reasons for the visit have been outlined, the delegate gives more weight to the adverse immigration history of two members of the applicant’s family. There is no detail about this in the decision or on file. It then outlines that this was not factored into the decision and refers to other factors but does not list them. There is reference to inadequate evidence of their intention to comply with conditions.

15. Ms Thi Au Mai Nguyen does not have jurisdiction to be included in this review as her relationship with the person applying for merits review with the Tribunal is that of sister-in-law’s and not sisters.

16. Ms Nguyen Thi is an Australian citizen and is the sister of Mr Anh Tuan Bui. Ms Thi appealed the decision to the Tribunal on behalf of her brother Mr Bui.

    cl.600.211(a)

17. 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)).

18. The applicant’s movement records indicate that he has travelled to Australia on eight occasions. There is a demonstrated history of travel and compliance with visa conditions. Furthermore the applicant and his wife have travelled to Australia together on two occasions. The Tribunal considers that if the applicant and his wife intended to migrate to Australia they would have done so earlier.

19. The Tribunal also places weight in the applicant’s favour because the Tribunal has no information that the applicants did anything other than adhere to the conditions of their visas and returned to Vietnam prior to the expiry of their visas. The Tribunal considers that if the applicant and his spouse were paving the way for permanent residency in Australia by changing their visa status onshore, they could have done so on their two trips together.

20. 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)).  

    ·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.

21. Given that the applicant is 64 years of age, the Tribunal is satisfied that he is not coming to Australia to work and that he would therefore comply with condition 8101.  Similarly, the Tribunal considers it highly unlikely that he would come to Australia to study on a long-term basis. 

22. The Tribunal notes that the applicant has three brothers and his mother in Australia. He also has three daughters.  This, in other circumstances, may well represent an incentive for the applicant to change his status onshore.  However, the applicant has travelled to Australia previously and has not attempted to remain here or file applications for a substantive visa while in Australia. In addition to this, the applicant’s wife lives with him in Vietnam and provides incentive for him to return.

23. The delegate states that the applicant has failed to adequately supply evidence of his intention to comply with conditions. The visa application is detailed and the families migration history does not appear adverse, the applicant’s family in Australia have provided letters of support and the application is accompanied by very detailed medical evidence supporting his mother’s grave health situation, namely heart disease and bowel cancer.  Further medical reports indicate she is in a critical condition and in palliative care. The applicant’s wife remains in Vietnam and this provides a further incentive for the applicant to adhere to the conditions on his visa and return home.

24. On balance, the Tribunal considers that the sponsor’s current circumstances and his mother’s strong desire to see her son before she dies is compelling and credible.

25. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The delegate’s decision makes reference to the adverse immigration history of two members of the applicant’s family.  It then outlines that they didn’t have to factor this into their decision making. The Tribunal has attempted to investigate this however there is nothing before the Tribunal which indicates any adverse immigration history and the decision provides no further detail. The Tribunal accepts that the visa applicant’s three daughters are in Australia and came on temporary visas and have applied legitimately for permanent visas and one has successfully obtained citizenship and one was granted a spouse visa and the other has successfully been granted a skilled 189 visa. Therefore there is nothing to indicate the applicant’s family have an adverse immigration history which is relevant to his genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. 

26. The Tribunal has also had regard to country information about the economic and social conditions relating to Vietnam.  The World Bank describes Vietnam as a ‘development success story’ and has over twenty five years moved from being one of the poorest countries in the world to ‘low middle income’ status.  The poverty rate has declined significantly and it is ranked 115 out of 188 countries in the latest United Nations Human Development Index[1]. This information indicates that there is nothing adverse which would represent an incentive for the applicant to remain in Australia permanently. 

    [1] DFAT Country Information report Vietnam 21 June 2017 accessed 20 April 2018.

27. During the Tribunal’s scan of country information it has not been able to identify any cause for concern in terms of its security or other civil disruption there.  The fact that the applicant and his wife have left Vietnam and returned on prior trips to Australia would support this contention.

28. 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.

29. Given the circumstances, any efforts the Department of Home Affairs may make in expediting this case would be appreciated.

    DECISION

30. 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.

    Rachel Westaway
    Senior Member