Tran (Migration)

[2023] AATA 355

Tran (Migration) [2023] AATA 355 (15 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Tuoi Tran

VISA APPLICANT:  Miss Thi Hiep Tran

CASE NUMBER:  2205670

HOME AFFAIRS REFERENCE(S):          BCC2021/398677

MEMBER:K. Chapman

DATE:15 February 2023

PLACE OF DECISION:  Brisbane

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 15 February 2023 at 12:48pm 

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous compliant visits to other countries – strong financial position – employment commitments and familial links to Vietnam – desire for further family visits – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611; Schedule 8, Conditions 8101, 8201

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 28 March 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, Miss Thi Hiep Tran, applied for the visa on 15 March 2021. 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 she 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 she was assessed as not genuinely intending to stay temporarily in Australia. On 15 April 2022 the review applicant, Mrs Thi Tuoi Tran (the sister of the visa applicant), applied to the Tribunal for review of the visa refusal decision. She provided a copy of the delegate’s decision to the Tribunal with her review application. The review applicant also lodged material including identity documentation, financial records, employment verification documentation and employment leave particulars. The Tribunal has duly considered all submitted material.

5. The review applicant appeared by video before the Tribunal on 2 February 2023 to give evidence and present arguments. She confirmed that she was comfortable participating in the hearing by video. The Tribunal also took evidence by video from the visa applicant in Vietnam and from Mr Viet Do (the husband of the review applicant) in Australia. Two other listed witnesses were uncontactable. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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 she has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by her was subject; whether she intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

   Evidence before the Tribunal

8. The evidence provided to the Tribunal, in summary, establishes the following facts. The visa applicant is 31 years of age and resides in Vietnam with her younger sister. The visa applicant has her mother and eight siblings residing in Vietnam. She is employed by a shoe manufacturing company, where she has been working for around 12 years. The review applicant has invited the visa applicant to Australia to visit her and her family, including a niece and nephew.

9. The review applicant is the only sibling of the visa applicant resident in Australia. The review applicant is the primary caregiver for her two children (the niece and nephew of the visa applicant). She is married to Mr Do, who has been continuously employed on the Sydney rail network since 2010. The review applicant and Mr Do are financially comfortable. They seek a short visit from the visa applicant, as they have not seen her in a long time due to the COVID-19 pandemic. 

10. The visa applicant has previously visited South Korea, Taiwan and Malaysia without incident. The review applicant and her husband are very confident that the visa applicant will only travel to Australia to conduct a genuine visit. For completeness, the Tribunal records that there is nothing in evidence before it to suggest there is any risk of harm for the visa applicant in her country of nationality. 

    Analysis

11. The Tribunal records that it was impressed with the fashion in which Mr Do delivered his evidence at hearing. He answered the Tribunal’s questions directly, with fulsome detail, and in a manner consistent with the other witnesses. Accordingly, the Tribunal considers him to be a credible witness and his evidence is afforded high weight.

12. In the present matter, the visa applicant seeks the visa for the purpose of visiting her sister and her family in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

13. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)). The visa applicant has not held an Australian visa before. This is a matter that weighs neither in favour of, nor against, the grant of the Subclass 600 visa to her.

14. 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):

    ·8101 – must not work in Australia; and

    ·8201 – must not engage in study or training in Australia for more than 3 months.

    Discretionary visa conditions may also be imposed, however, given the delegate did not refer to these in the primary decision the Tribunal proceeds upon the basis they would not have been. Given the comfortable financial position of the review applicant and her family in Australia, the Tribunal is satisfied the visa applicant would refrain from working in this country and accordingly comply with condition 8101 if she were to be granted a Visitor visa. Further, given the visa applicant’s employment commitments and familial links to Vietnam, the Tribunal is satisfied that she will not attempt to study in Australia. Accordingly, the Tribunal finds the visa applicant would comply with condition 8201 if she were to be granted a Visitor visa. These are matters that weigh in favour of granting the visa to her.

15. The Tribunal has also considered all other relevant matters as required by cl 600.211(c). As outlined, it is apparent the review applicant in Australia has the financial means to comfortably support a visit of the visa applicant to this country. Furthermore, the visa applicant has demonstrated she has significant links to Vietnam. Such links present significant incentives for her to return to Vietnam. The Tribunal accepts that the visa applicant is happy with her circumstances in her country of nationality.

16. On balance, the Tribunal finds that the personal circumstances of the visa applicant suggest she will return to Vietnam if permitted to visit Australia. The Tribunal makes this finding, in large part, due to its assessment that Mr Do is a most credible witness. In particular, the Tribunal is satisfied the review applicant and her husband would be well aware that any visa non-compliance by the visa applicant would place in jeopardy future Australian visa applications made by members of their family, and they would not allow this.

17. 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.

18. For completeness, the Tribunal recommends to the Department that a visa validity period of 3 months is granted. Further, the Tribunal considers this to be a matter where the application of Condition 8503 to the Visitor visa is appropriate.  

    DECISION

19. 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.

    K. Chapman
    Member