Tor (Migration)

[2023] AATA 3655

Tor (Migration) [2023] AATA 3655 (19 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Chantra Tor

VISA APPLICANT:  Mr Panha Tor

REPRESENTATIVE:  Mr Meng Bunlay (MARN: 1794554)

CASE NUMBER:  2215531

HOME AFFAIRS REFERENCE(S):          BCC2022/2399075

MEMBER:Stephen Witts

DATE:19 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 19 October 2023 at 2:06pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – limited financial resources – family links in Australia – employment in home country – property ownership in Cambodia – family medical issues – decision under review affirmed       

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 Home Affairs on 23 September 2022 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 27 June 2022. 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 19 October 2023 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the visa applicant and the visa applicant’s sister, Mrs Thyda Tor.

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

8. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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.

12. 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)).

13. The Tribunal finds that there is no evidence before it of any non-compliance of substantive visa conditions by the applicants.

14. The Tribunal notes that it has considered all the evidence before it including evidence provided prior to the hearing and evidence given at the hearing.

15. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision dated 23 September 2022 by the applicants. In this decision it was stated that the delegate considered the visa applicant’s financial situation, any evidence of the accumulated funds or assets, and that the applicant did not have any immediate family members in Cambodia and made a decision that the visa applicant’s family links in Australia would be an incentive for the applicant to remain in Australia.

16. The Tribunal also notes that it has been provided on 22 October 2022 with material by the review applicant including a driver’s licence for the review applicant and for the review applicant’s husband Mr Rithy Heng, record of a previous visitor visa grant for the visa applicant, the brother of the review applicant, indicating the grant of the visa in April 2019 for one month, bank material for the visa applicant dated 15 June 2022 stating that he has a bank account with a credit balance of US$7000, employment material stating that the visa applicant is a full-time staff member of a zinc factory in Cambodia working as a sales manager from March 2015 until June 2022, and other material. Also included was a record of a first birthday party for a child of the review applicant dated 17 September 2022.

17. Also included was a leave of absence permission letter dated 23 June 2022 from a zinc factory in Cambodia stating that there is a requested absence for the visa applicant to visit his Australian family. Also included was citizenship material for the review applicant stating that she became a citizen on 2 October 2019

18. The Tribunal notes that information was also provided on 18 October 2023 including a certificate of employment from the zinc factory dated 14 October 2023 from the visa applicant indicating that he has been working as a sales manager from March 2015 until October 2023 and is paid a salary of US$650 per month.

19. Also included was a certificate of property ownership for property held in Cambodia in the name of Mr Mony Tor, father of the visa applicant, and various other parties.

20. Also included was a rate notice from a city council in the name of the review applicant for a property held in Noble Park, bank account material in the review applicant’s name for an Australian-based account with an account balance of several thousand dollars.

21. Also included was a letter from a psychologist dated 6 April 2023 stating that Mr Mony Tor, the father of the visa applicant, is suffering from depression and anxiety since the decision of the Department to deny his son, the visa applicant, a visa to visit Australia to spend time with his father and family. It was stated that he also has other health problems including gout and hypertension and that his son has visited the family in Australia before and that he would rather see him in person than speak on the phone. It was also stated that he is having difficulties coping with the fact that he is getting old. It was also stated that he has had a very difficult life and is suffering ongoing trauma from his experiences back in his home country and that he does not feel able to travel to Cambodia to visit his son.

22. Also included were some salary details for Mr Rithy Heng, and for the review applicant, and bank statements from the Commonwealth Bank in both names.

23. At the hearing the Tribunal had a discussion with the parties regarding the application.

24. The visa applicant stated that he lives by himself in Cambodia and that he does not have a partner or children, and that his family is in Australia including his parents, and three sisters, and that two of his sisters have children, one has two children, and one has one child.

25. He stated that he has been on a visit to Australia before in 2019 as a visitor for 26 days and that he also has visited Thailand as well. He stated that two of his sisters have visited him once in his home country, and that he still works at the zinc factory and has been employed there for eight years. He stated that he does not own any property himself, but he does live in a house owned by his father. He stated that he misses the family and would like to visit Australia.

26. The review applicant stated that she came to Australia on a spousal visa in 2012 and that her elder sister also came here on a spousal visa, and that they sponsored her parents and another of her sisters to come to Australia. She stated that she wants her brother to visit the family and that they miss him a lot particularly at family and social events and that her father cannot visit him in Cambodia due to his health issues and that he did come here in 2019 and did return. The review applicant’s sister stated that she wants her brother to come here to Australia and that he needs to be in Cambodia permanently because he has a job over there, and that he also has $7000, and that he lives in a house owned by his father and that they also own a rice mill.

27. The Tribunal has considered the above evidence carefully noting that the visa applicant lives alone and does not have any immediate family in his home country and that his parents and all his siblings live in Australia. The Tribunal after careful consideration finds that this would lend significant weight to a view that the applicant has significant incentive, once here in Australia, to remain in Australia on a more long-term basis.

28. The Tribunal has considered that it has been stated that the visa applicant has visited Australia before in 2019 and did return. It was also noted by the parties that they were all in Australia by that time and yet he still returned to Cambodia. As stated the Tribunal has considered this carefully but finds that it may have been the case that at that particular time the visa applicant was not in a position to remain in Australia on a permanent basis and that at that point of his life he made a decision to return to Cambodia but that those circumstances may have changed now he is an older man and that therefore this does not lend significant weight to a consideration that he would not stay for a longer period of time should he be successful in coming to Australia as a visitor.

29. The Tribunal has also considered the factor that the applicant himself does not own any property in Cambodia and therefore has no real financial incentive to remain in Cambodia as such noting that he is living in his parents’ house and that that financial asset and any others held by his family can continue to be held and either divested at some point while in Australia or leased while he is in Australia. The Tribunal notes that the visa applicant has some cash but that this would not act as an incentive to return as such cash can be converted while here in Australia. The Tribunal notes that the applicant also has a job in Cambodia which he has worked in for some years but also notes that the salary provided is  one that is much lower than a salary he could command here in Australia even in a low skilled occupation, which would nevertheless pay him a salary significantly higher than he would be paid in his home country, and that therefore there are economic circumstances which would provide incentive to remain here in Australia.

30. The Tribunal has also considered the evidence provided in regard to the family assets held in Cambodia, noting above that such assets can be managed from here in Australia by the family.

31. The Tribunal has also considered the visa applicant’s international travel noting that he has only travelled to Thailand other than Australia, and that he has no real record of having travelled to other comparable countries with a similar beneficial migration profile thereby demonstrating that there is no real test as to whether he would wish to stay in a similar country given the opportunity, which also lends some weight to a contention that the visa applicant may not intend a genuine temporary visit to Australia once here.

32. The Tribunal has also considered the recent country information reports from the Department of Foreign Affairs and Trade, and notes that the security and economic situation in Cambodia is difficult. In particular the Tribunal notes the challenging economic circumstances that the country is experiencing.

33. The Tribunal has considered this matter very carefully and finds that the situation back in the visa applicant’s home country is deleterious compared to Australia and that this does lend weight to the contention that the visa applicant does not genuinely intend to visit Australia temporarily for the purpose for which the visa is granted.

34. Taking all these factors into consideration the Tribunal finds that should the visa applicant be successful in coming here as a visitor taking into contention the circumstances both in the visa applicant’s home country as above and also the visa applicant’s family circumstances in Australia that the visa applicant may seek to stay here in some form on a long-term basis and that he does not genuinely intend to stay in Australia temporarily.

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

36. 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

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

    Stephen Witts
    Member