To (Migration)

[2021] AATA 5478

To (Migration) [2021] AATA 5478 (14 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kim Anh To

VISA APPLICANT:  Mrs Hue Khanh To

CASE NUMBER:  1932579

HOME AFFAIRS REFERENCE(S):          BCC2019/5012406

MEMBER:Stephen Witts

DATE:14 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 14 October 2021 at 3:04pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – intention to comply with visa conditions – personal and economic circumstances – lacks significant incentive to return to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 Home Affairs on 23 October 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 7 October 2019. 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 (Cth) (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 that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 14 October 2021 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant, the review applicant’s sister.

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

8. For the following reasons, the Tribunal has concluded that the decision to review should be affirmed.

   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 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

11. 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)). The Tribunal notes that there is no evidence before it of any substantive visa breaches by the applicants.

12. The Tribunal must also consider if appropriate 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. According to the delegate’s decision record dated 23 October 2019 the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

14. According to the delegate it considered that the visa applicant had provided some evidence of personal and economic circumstances in the visa applicant’s home country and that the stated purpose was to visit their sister in Australia. It considered the applicant’s ownership of assets in the form of land and that she did have family members remaining in Vietnam. It also considered the visa applicant’s retirement and found that the applicant did not have strong employment or economic incentives to return to her home country.

15. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at hearing. In particular the Tribunal notes that some material was provided on 15 November 2019 including passport material, house rental contracts, and relationship status material. The Tribunal notes that material was also provided on 7 October 2021 including bank statements from Vietnam, additional information regarding relatives who have visited Australia in the last 10 years including  two brothers and a sister over the last few years who did not breach the conditions of their respective visas. It was also stated that the visa applicant is retired and that she helps her son to run his business as a consultant and that she is living on her savings and also receives financial support from her son. It was stated that she is not required to pay rent and is living in her own property and that there is family in Vietnam which includes a son, a daughter, and four grandchildren.

16. At the hearing the Tribunal had discussion with the applicants regarding their application.

17. The visa applicant stated that she had visited Australia on two previous occasions in 2007 and 2010 and that she had been on guardian visas at that time for her daughter’s study in Australia. She stated that she has visited other countries including Singapore, Hong Kong, Thailand, Malaysia, Taiwan and Cambodia. She stated that she lives with her son and daughter and that her son owns one house and that she owns the house next door which she lives in. She stated that she is retired now but still helps her son in his business making and dispatching lamps. She stated that she is not allowed to stay in Australia permanently, but she wants to come as a visitor but not to stay here.

18. The review applicant stated that she first came to Australia in 2002 on a guardian visa for her daughter and that she became an Australian citizen in 2013. She stated that she had a husband and a son and daughter here aged 35 and 33, and that she also had a nephew here, the son of one of her brothers. She stated that she had seven siblings and that they all live in Vietnam. She stated that she had not seen her sister for some time and that she suffered from rheumatism. She also stated that her brother and another sister had visited her in Australia, and they did not violate their visa conditions.

19. The Tribunal has considered the evidence provided by the applicants carefully and is concerned by the evidence provided by the visa applicant which the Tribunal did not find credible. The Tribunal has considered that the visa applicant is retired but that she has stated that she assists her son in his lamp making business but the Tribunal did not find that the visa applicant was able to demonstrate that she actually was doing any particular work. It is also noted by the Tribunal that although she says she owns a house, that is the house next to her son’s own house, it was not clear what property and assets she in fact owned. The Tribunal is concerned that the visa applicant in fact does not have any particular economic incentive to return home to her home country and that she did not have any particular commitments that would encourage her to return. The Tribunal also notes that although the applicant has stated that she has visited other countries it is further noted by the Tribunal that these countries do not have a comparable developed immigration program to Australia’s and that therefore these visits are not an indication that the applicant under these circumstances intends a genuine temporary visit to Australia. The Tribunal has also considered that she does have family in Vietnam however these are not dependent family members and that she also has her family here in Australia and that these factors do demonstrate a lack of incentive to return to her home country.

20. The Tribunal has considered the evidence carefully as noted above and finds that the visa applicant lacks a significant incentive to return to her home country should she be successful in being granted a visitor visa. The Tribunal finds that these factors lend weight to the contention that the applicant does not genuinely intend to stay in Australia temporarily for the purpose for which the visa is granted.

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

22. 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

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

    Stephen Witts
    Member