TRAN (Migration)

[2021] AATA 946

TRAN (Migration) [2021] AATA 946 (26 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi My Thao TRAN

VISA APPLICANTS:  Mr Huu Nghia TRAN
Mrs Thi Ha Tien HUYNH

CASE NUMBER:  1900087

HOME AFFAIRS REFERENCE(S):          BCC2018/4649654

MEMBER:Angela Cranston

DATE:26 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the first named applicant’s application for a visitor (Class FA) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

The Tribunal affirms the decision not to grant the second named visa applicant a visitor (Class FA) visa.

Statement made on 26 February 2021 at 15.27pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – incentives to remain or return – application listed no family members in home country and minimal evidence of employment and income – information provided to tribunal by review applicant – previous compliant travel by other family members – first applicant and review applicant’s parents delayed in Australia by COVID-19 travel restrictions – second applicant would apply for visa for newborn child – decision under review remitted for first applicant, affirmed for second applicant

LEGISLATION

Migration Act 1985 (Cth), ss 65, 338(5)

Migration Regulations 1994 (Cth), r 4.12(4), 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 28 November 2018 to refuse to grant the visa applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The visa applicants applied for the visas on 23 October 2018. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.

3.    In his application, the first named applicant stated that he was born in 1992,that his was married and would be travelling with his wife, that he wanted to come to Australia from 14 December 2018 to 4 January 2019, that he lived in Ho Chi Minh City and was employed as a sales worker for Kim Thinh Thinh Cold Store since 2011.

4.    In her application, the second named applicant stated that she was born in 1993,was married, lived in Ho Chi Minh city and had worked as a sales worker for Hiep Duyen Gold Store since 2013.

5. 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.

1. The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl 600.211. In relation to the first named applicant, the delegate said the following:

The applicant has not indicated the presence of any family members or dependent family members in Vietnam that will induce him to return within the validity of his visa. I therefore place no weight on the applicant’s family as incentive to return and consider that his/her family ties to Vietnam to be outweighed by the presence of his sister in Australia. Therefore the applicant’s family ties are not sufficient to demonstrate that the applicant intends a genuine temporary stay in Australia.

The applicant declared that he is self-employed as sales worker by Kim Thinh Thinh Gold store enterprise since 2012. The applicant provided minimal evidence of the employment income as a regular and ongoing source of his accumulation of funds. Given the evidence provided I am not satisfied that the applicant’s business circumstances would encourage the applicant to depart Australia at the end of the proposed period.

The applicant has not provided evidence of any previous travel or demonstrated previous compliance with immigration laws in Australia or other countries. I therefore place no wait on previous international travel as evidence that the applicant will comply with his visa conditions and depart Australia within the validity of his visa.

Whilst I accept the applicant wishes to visit his relatives, I am not satisfied the applicant would abide by conditions subject to which a sponsored family Visa is granted. The policy guidelines direct me to consider the offers of support given by family members and friends in Australia. However the onus is on the applicant demonstrate that they have the means and intention for a genuine visit.

7.    In relation to the second named applicant, the delegate said the following:

The applicant has not indicated the presence of any family members or dependent family members in Vietnam that will induce her to return within the validity of her visa. I therefore place no weight on the applicant’s family as incentive to return, and consider his/her family ties to Vietnam to be outweighed by the presence of his sister in Australia. Therefore the applicant’s family ties are not sufficient to demonstrate that the applicant intends a genuine temporary stay in Australia.

The applicant declared that she is employed as Sales Worker by Sales Worker by HIEP DUYEN GOLD STORE ENTERPRISE since 2013. The applicant provided minimal evidence of her employment and income as a regular and ongoing source of her accumulation of funds. Given the evidence provided I am not satisfied that the applicant’s business circumstances would encourage the applicant to depart Australia at the end of the proposed period.
The applicant has not provided evidence of any previous travel or demonstrated previous compliance with immigration laws in Australia or other countries. I therefore place no weight on previous international travel as evidence that the applicant will comply with her visa conditions and depart Australia within the validity of her visa.

8.    The review applicant appeared before the Tribunal on 28 January 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

9.    The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

1. When asked to comment on the department’s decision, the review applicant stated she would pay a bond of up to $30 000 for each applicant. She stated the applicants would return to Vietnam because they had jobs and family in Vietnam, including the first named applicant’s parents, two siblings, and one child whereas the second named applicant’s parents, 6 or 7 siblings and one child.

2. When asked why the first named applicant’s family was not recorded in his visa application, she stated he had that information. The review applicant confirmed that her parents were Van Dat Tran (born 1961), her mother Thi My Tu Tran (born 1963) and sister Thi My Linh Tran (born 1980) had all been to Australia. 

3. The review applicant stated it would be good if both applicants could come however she would also be satisfied if only one came. She also stated that since they had a child, she would imagine the baby would also come however the baby did not yet have a passport.

4. The Tribunal put to the adviser that there was no family listed in Vietnam.  

5. Following the hearing, the Tribunal received a statutory declaration from the review applicant detailing the first named applicant’s parents, brother and sisters and daughter in Vietnam as well as the second named applicant’s parents and siblings and daughter in Vietnam.

6. The Tribunal again wrote to the review applicant asking for an explanation as to why movement records indicated the review applicants parents were in Australia and also asked for a birth certificate for Kim Cat Tran.

7. The Tribunal received a copy and translation of the said birth certificate and the following response:

   My father renewed visitor visa was granted on 14 July 2020 and expired on 7 February 2021. At this time, the Australian travel restriction is still in effect and my father has not yet been able to book a flight ticket to return to Vietnam…

   My mother arrived in Australia on 14 March 2020 to visit my family and 14 June 2020, the 3 month period allowed to stay in Australia expired. However, like my father’s case, at that time the covid 19 Pandemic broke out, so my mother could not book a flight ticket to return to Vietnam.      

Movement records

1. Movement records state that the review applicant entered Australia on a student visa on 31 January 2010 and obtained permanent residence on the basis of the regional sponsored migration scheme visa on 13 July 2016.Her father entered Australia on a tourist visa on 20 August 2006 and departed on 16 November 2006. He again entered on 16 May 2018 and departed on 12 August 2018. He again arrived on 1 June 2019 and departed on 7 July 2019. He again entered on 2 November 2019 and departed on 26 January 2020. He again entered on 14 February 2020 and has remained.   Her mother entered Australia on 20 August 2006 and departed on 16 November 2006. She again arrived on 13 December 2015 and departed on 6 March 2016. She again arrived on 22 May 2017 and departed on 15 August 2017. She again arrived on 14 October 2017 and departed on 31 December 2017. She again arrived on 23 March 2018 and departed on 12 June 2018.She again arrived on 15 September 2018 and departed on 9 December 2018. She again arrived on 15 December 2018 and departed on 27 January 2019. She again arrived on 29 July 2019 and departed on 6 October 2019. She again arrived on 2 November 2019 and departed on 12 January 2019. She again arrived on 14 March 2020 and has remained.

2. The review applicant’s sister arrived in Australia on 16 December 2017 and departed on 31 December 2017. She again arrived on 30 June 2018 and departed on 22 July 2018.

3. For the following reasons, the Tribunal has concluded that the first named applicant’s matter should be remitted for reconsideration and the second named applicant’s decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

Can the applications be combined in the review process?

1. The first and second named visa applicants applied for sponsored family visitor visas in separate but contemporaneous applications dated 29 November 2015. The review applicant who is also the sponsor made an application for review which combined the applications for review.

2. The Migration Regulations provide that where a sponsor has sponsored two or more members of a family unit in relation to primary visa applications of a type covered by s.338(5), and the Minister's decisions to refuse the visas in respect of those applicants is MRT-reviewable, the sponsor can make a combined application for review of those decisions; r.4.12(4).

3. Whilst this is a combined application for review and the first named applicant's review has been combined with that of the second named applicant, his wife, the Tribunal has made separate decisions in relation to the applicants.

Hearing

1. The Tribunal exercised its discretion (and pursuant to Covid-19 Practice Direction for Migration and Refugee Division dated 27 April 2020) to hold the hearing by telephone. The hearing was held during the Covid -19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone.

2. While the Tribunal spoke to the review applicant by telephone, the Tribunal's observations were that the review applicant and her adviser was given ample opportunity to submit all the evidence that they wanted the Tribunal to consider. The Tribunal considers that in these circumstances, it has given the review applicant a fair opportunity before, during and after the hearing to provide all the evidence and arguments and evidence that she wanted the Tribunal to consider.

Substantive matter

1. The issue in both cases 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.

2. In the present case, the visa applicants seek the visas for the purposes of visiting the review applicant, the first named applicant’s sister. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

3. 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)).

4. The Tribunal must also consider whether a 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.

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

The first named applicant

1. The Tribunal has considered the first named applicant's incentives to return to Vietnam. The first named applicant is nearly 29 years old, married with 1 child in Vietnam. In addition, he also has siblings and his own business. The Tribunal is satisfied that the applicant has strong personal ties to Vietnam and these are reasons why, in the Tribunal view, the applicant would return to Vietnam after any period of authorised stay.

2. However, he also has ties to Australia in that the review applicant and his two parents are here, albeit on temporary visas. When this issue was raised with the review applicant, it was submitted that the applicant’s parents were in Australia because of COVID. The Tribunal accepts that this is true. In reaching this conclusion, the Tribunal also notes that they have visited and departed Australia within the period of their tourist visa many times. Accordingly, in the Tribunal's view, this family's compliance with migration laws is impressive and there is nothing in the first named applicant's or review applicant's past migration history or in the past migration history of any of their family to suggest that they have done anything that is contrary to their visa or other than what they say they will do.

3. The Tribunal also considers that the potential loss of any security bond if one is imposed by the Department would also provide additional incentives for his compliance.

1. The Tribunal therefore finds that the first named applicant genuinely intends to visit Australia and will comply with visa conditions.

2. For the above reasons the Tribunal is satisfied that the first named 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.

The second named applicant

1. The Tribunal has considered the second named applicant's incentives to return to Vietnam. The second named applicant is nearly 28 years old, married with 1 child. In addition, she also has her parents and siblings and her own business. However, she also has ties to Australia in that her husband’s family are here, her husband’s review application has been successful and he will potentially be travelling to Australia, albeit on a temporary visa. The Tribunal has considered whether the second named applicant's personal circumstances in Vietnam are such that she will return to her home country rather than remain in Australia if she were to join her husband. Having regard to the evidence including the evidence at hearing that if granted a visa, then she would also seek to obtain a visa for her baby, the Tribunal is not satisfied that if she were granted a visa, then the second named applicant would have any immediate family members in Vietnam and she would have less incentive to return. In these circumstances, the Tribunal has concerns that she will seek to  remain in Australia even if a bond were to be imposed.

2. The Tribunal therefore finds that the second named applicant does not genuinely intend to visit Australia or comply with visa conditions.

3. For the above reasons the Tribunal is not satisfied that the second named applicant meets the requirements of cl.600.211.

DECISION

1. The Tribunal remits the first named applicant’s application for a Visitor (Class FA) visa for reconsideration, with the direction that he meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

   ·cl 600.211 of Schedule 2 to the Regulations.

2. the second named applicant’s decision under review should be affirmed.

Angela Cranston
Member