Tran (Migration)

[2021] AATA 4838

Tran (Migration) [2021] AATA 4838 (3 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr An Tran

VISA APPLICANT:  Ms Tuyen Thi Lam

CASE NUMBER:  2001011

HOME AFFAIRS REFERENCE(S):          BCC2019/6303302

MEMBER:Mark Bishop

DATE:3 December 2021

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 03 December 2021 at 12:07pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – compliance with visa conditions – family members remaining in home country – review applicant sponsoring his wife and infant – financial reliance on the sponsor – language barrier – family commitments in Vietnam – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 21 January 2020 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 26 November 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 Sponsored Family 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.

5. The Review Applicant (RA) and Visa Applicant (VA) appeared before the Tribunal on 3 Dec ember 2021 to give evidence and present arguments. 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 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 Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

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)).

10. 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 600.612):

    ·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.

11. The delegate made the following findings:

    My decision is based on the following factors

    I have noted that the applicant has declared family members who will remain in Vietnam during her proposed visit to Australia. While I acknowledge these family members may offer some inducement to return I am not satisfied their presence sufficiently demonstrates that the applicant intends a genuine visit to Australia.

    In response to the employment status of the applicant, the applicant declared that she has been employed with Cosmetics. While the applicant’s claims are not doubted, however I am not satisfied that the applicant’s employment offers sufficient incentive for the applicant to comply with her visa conditions.

    Whilst I have taken into consideration the support provided by Mr An Tran, the applicant has not provided evidence of sufficient ties to Vietnam to demonstrate that she has the incentive to depart Australia within the validity of her visa. I therefore cannot be satisfied that the applicant will comply with her visa conditions.

    After considering the information provided, I am not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above.

    Therefore, I am not satisfied that the applicant meets the relevant criteria in clause 600.211 in Schedule 2 of the Migration Regulations.

    Decision

    As clause 600.211 is not satisfied, I find that the criteria for the grant of a Visitor (Sponsored Family) visa in the Family Sponsored stream are not satisfied. Therefore, I refuse the application by the applicant for a Visitor (Sponsored Family) visa in the Family Sponsored stream.

12. The applicant made the following submissions to the Tribunal:

    I wish you to review and reconsider my application for a visitor visa for Ms Tuyen Thi Lam which has been refused by the Department of Home Affairs on 21-01-2020.

    Since the visa application was refused, Tuyen stayed in Viet Nam had a baby boy, now 18 months old, I could not go to Viet Nam with her due to the pandemic, therefore I wish her and my baby can come to see me and my 96 year old father in Australia. What I can do is to declare that she and the baby will return to Viet Nam before the visa expire, as we have no intend to apply for a permanent visa while she stay in Australia, she has parents, grandmother to look after in Viet Nam and she is not sure if she wants to live in Australia because of the language barrier. I have been living in Australia for 41 years, been working as a dentist since 1987, as an Australian citizen with no criminal record, I will take full responsibility for her behaviour and promise that she will return to Viet Nam after visiting my family in Australia.

13. In evidence the RA advised as follows:

    ·He was 69 years of age, previously married with 2 children, both Australian citizens had lived in Australia since 1980 and had ben an Australian citizen since 1983.

    ·He was a dentist with two practices employing10 people and described himself as a wealthy man with significant assets, many properties and business interests. He did not have any assets in Vietnam.

    ·Initially de described his relationship with the VA as de facto in nature. After hearing the evidence of the VA the RA concurred the pair were married 4 years ago in Vietnam in a traditional family ceremony in front of in-laws and relatives. He did not at that time go through a government sanctioned marriage ceremony because he was only in Vietnam for a short period, the paperwork demands were extensive and he did not have time to organise all the necessary detail that is required by Vietnamese law. In re-examination he agree he and the VA were married.

    ·The RA advised he and the VA were the parents of an 18 month son. The birth of the son was recorded in the hospital and details of mother and father were recorded by the hospital. The Tribunal is unsure as to whether this form of name detail constitutes a birth certificate. However the RA advised the Tribunal he acknowledges his parentage of his son and provides all necessary funds for the upkeep of the child and maintenance of the VA.

    ·The RA has been unable to visit his son in Vietnam because of Covid-19.

    ·The RA said he did not have any current concerns in visiting his home country.

    ·He explained the VA had minimal English and was uncertain as to leaving her parents and family in Vietnam to live in Australia because of familial obligations to her parents.

    ·He advised he would go through a recognised government ceremony in Vietnam in the future.

14. In evidence the VA advised as follows:

    ·She was born in 1988 and was 35 years of age. She described her relationship with the RA as a marriage relationship She advised she went through a wedding ceremony in front of family on 2 November 2019.. She advised she and her son currently resided with her parents and a sibling. She advised the RA provided support to her for herself and her son.

    ·She advised she did not have any business interests or commercial assets. She described her parents as having normal income being farm workers.

    ·She stopped working with the birth of her son and was financially reliant on the RA.

    ·She advised she had not “actually” decided to live permanently in Australia as he did not speak English, was not familiar with Australia and had important obligations to her parents in Vietnam.

    ·At the moment she wished to visit the RA in Australia meet his family and introduce her son to the RA’s wider family.

15. The Tribunal has paid careful attention to the evidence of the RA and VA.

16. The Tribunal finds the RA and VA went through a traditional marriage ceremony approximately 4 years ago, that the RA is the father of the child of the VA, that the RA provides financial support for the maintenance of the VA and upkeep of their son, that the RA quite naturally wishes to see his son and introduce his son to his family in Australia, that the VA naturally wishes to spend time with her husband and father of her child, that the VA has an incentive to return to the home country because of familial obligations to her parents, and the current personal circumstances of the VA mitigate against her remaining in Australia at the end of her visa period.

17. 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

18. 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.

    Mark Bishop

    Member