TRUONG (Migration)

[2018] AATA 5780

TRUONG (Migration) [2018] AATA 5780 (26 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi My Nhien TRUONG

VISA APPLICANT:  Mr Khai Thach

CASE NUMBER:  1807011

HOME AFFAIRS REFERENCE(S):           BCC2018/488138

MEMBER:Paul Windsor

DATE:26 November 2018

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 26 November 2018 at 12:24pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting sister – past compliance with visa conditions – intention to comply with visa conditions – length of proposed stay – self-employment – review applicant capable of funding brother's visit – credible witness – decision under review remitted

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 Immigration on 28 February 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 29 January 2018. 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 (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, noting that the (three months) was inconsistent with the purpose of ‘visiting family’ had concerns that the applicant, being self-employed, will not be receiving remuneration while in Australia, raising concerns that he may be intending to travel for reasons other than a genuine temporary stay.

5. The review applicant, who is the visa applicant’s sister, sought review of this decision by the Tribunal on 15 March 2018.  The review applicant provided the Tribunal with a copy of the delegate’s decision record.[1]

   [1] See folios 1-2 of the Tribunal file.

6. The review applicant appeared before the Tribunal on 26 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mr Thach Kai. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 his sister. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)).

12. The visa applicant last visited Australia from 20 January 2009 until 16 April 2009.  There is nothing to indicate or suggest that he did not comply with the conditions of this visa, which ceased on 20 April 2009.

13. 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.

14. The visa applicant is 61 years of age.  He has a wife and two adult children in Vietnam.  He farms shrimp and runs a grocery store that also serves cooked noodles in the morning.  He has indicated that his wife and children will run the store while he is away.  The representative has indicated in his written submission and in oral evidence at the hearing that the Department initially proposed to grant the visa applicant a visa allowing a four week stay in 2011 but when the sponsor asked that this be extended to six weeks to enable her brother to visit other locations in Australia with relatives who were visiting from the United States at the same time, the visa application was refused.  The representative indicates that the Department questioned whether the visa applicant had worked illegally during his visit to Australia in 2009.  At the hearing the visa applicant and the review applicant assured the Tribunal that this was not the case and the Tribunal accepted those assurances.  The review applicant informed the Tribunal that she was a single mother at the time and her brother spent most of his time in Australia at her home assisting her with gardening and clearing rubbish around the house.

15. The Tribunal found the review applicant to be an open and forthcoming witness and has no reason to question the veracity of her evidence.  The Tribunal finds that the visa applicant has clear incentives to return to Vietnam in the form of his wife, children and grandchildren.  The Tribunal finds that the review applicant is in a position to fund the visit of her brother and considers that the visa applicant does not require ‘remuneration’ over this period and that his wife and children will be maintaining his business while he is away.  The Tribunal considers that the visa applicant will comply with the conditions to which the visa would be subject.

16. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  In this regard The Tribunal also notes that the review applicant has a strong desire for her brother to visit her again to celebrate her sixtieth birthday and to visit some other parts of Australia outside of Victoria.  The Tribunal notes that the review applicant’s elder brother also visited Australia in 2007, complying with the conditions of his visa, and the review applicant’s sadness that her elder brother passed away before he had the opportunity to again visit her in Australia.

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.

    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.

    Paul Windsor
    Member