Vilayhong (Migration)

[2019] AATA 6233

Vilayhong (Migration) [2019] AATA 6233 (26 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Packy Vilayhong

VISA APPLICANT:  Ms Louny Vilayhong

CASE NUMBER:  1811751

HOME AFFAIRS REFERENCE:               BCC2018/264226

MEMBER:Rosa Gagliardi

DATE:26 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 October 2019 at 8:24pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream–genuine temporary stay criterion – applicant was previously refused a visitor visa – economic situation in Laos– strong incentive remain in Australia –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 359, 360

Migration Regulations 1994, Schedule 2, cls 600.211, 600.612, 600.231

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 16 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 16 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 he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant/sponsor appeared before the Tribunal on 12 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant overseas.  In addition, the sponsor’s spouse, Mr Inthiraj Southammanvong, gave evidence.  The Tribunal hearing was conducted with the assistance of an interpreter in the Lao and English languages.

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

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

   The hearing

9. The applicant is 31 years of age living in Vientiane, Laos.  She has expressed an intention to visit her sister, the sponsor, in Australia.

10. The sponsor explained that the applicant was previously married but was now separated.  She has one son.  He is about 7 or 8 years old and attends school.  The Tribunal asked the sponsor why her sister wanted to come to Australia leaving her young son behind.  The sponsor stated that her sister was simply coming to visit.  According to the sponsor, the applicant wanted to travel here for 5 weeks.  In terms of her work, the sponsor stated that she was a business woman and managed her sister’s properties comprising a large block.  She also managed a shop for her elder sister.  Her older sister produces goods for the temple and took them to market to sell.  The sponsor asserted that the applicant also maintains the office of her brother-in-law.  The Tribunal asked how the applicant derived an income to support herself and her son.  The sponsor stated that she earned about 2,000,000 Kit (Lao) per month.  The applicant owns her own home.  It was her mother’s property.  Asked who would look after the applicant’s son while she was away, the sponsor stated that her elder sister would do so.  In any event, her siblings all lived on the same block so they would also look after the applicant’s young son. 

11. The sponsor stated that Monday to Friday her child lived with his father and on the weekend he stayed with the applicant. 

12. The sponsor in Australia undertakes house duties and her husband is an IT specialist.  They own their own home but have a mortgage.  Asked who would look after the applicant’s expenses in Australia, the sponsor responded her own husband would, but most of the money would come from their older sister in Laos who employs the applicant. 

13. The sponsor reiterated that her two older sisters and a brother-in-law had travelled to Australia as visitors and they had all returned home on expiry of their visas.

14. The Tribunal raised the issue of the applicant having stated that she had never been refused a visa to Australia when in fact she had.  The Departmental decision noted that she stated that she had never been refused a visa, when in fact she had been refused a Visitor visa in 2013.  The sponsor stated that at that time she was not sure. 

15. The Tribunal asked about the applicant’s work in managing her siblings’ properties and the sponsor responded that she had been doing so for over 20 years; since she was very young.

16. Asked about savings held by her sister, including evidence of regular income, the sponsor stated that her husband had filled in the application form but they would submit such information if the Tribunal required it.

17. The sponsor’s husband also gave evidence.  He too emphasised that other family members had travelled to Australia and had complied with their visas conditions.  Therefore, the applicant would also comply.  They took this review very seriously.  He had addressed the issues raised by the Department in his submission to the Tribunal.  He thought there were mistakes in the Departmental decision. 

18. The Tribunal noted that it had little by way of evidence of income stream/s for the applicant.  He stated that the income she received was very hard to prove because the applicant was paid in cash which was consistent with working in a family business in Laos.  The Tribunal again expressed confusion as to why his sister-in-law would be prepared to leave her son behind to visit Australia.  The sponsor’s husband stated that she wanted to have a holiday, to visit Australia, and to open her eyes as one day she might send her son to study here.  But that would obviously be in the long-term.  She would work hard and save up the money to be able to do so.  The sponsor’s spouse impressed upon the Tribunal that he and his wife would make sure that the applicant complies with her conditions and were happy to submit security to demonstrate that she would do so.

19. The Tribunal asked the sponsor’s spouse to particularise the applicant’s sources of income and he replied that she worked in the family business.  He had heard that she collected money from her sibling’s rental units and did work for her brother-in-law. He did not know how many units were involved.

20. The Tribunal observed that clearly if the applicant were to establish herself in Australia her son would have a better future.  He responded that she would not want to be separated from her son.  Asked who would look after the applicant’s son in her absence, the sponsor’s husband stated that he presumed her sister and her ex-husband would, although he was not entirely sure.  He thought that the arrangements they currently had would more or less stay in place. 

21. The sponsor’s husband added that they had the idea that other family members would try to come as well and they would plan their activities at the time.  In the past they had planned specific activities but the applicant’s visa was refused. 

22. The Tribunal asked who would do the applicant’s job in her absence and the sponsor’s husband stated that it would be arranged among the siblings. 

23. The sponsor’s husband stated that the applicant does not have other relatives in Australia apart from the sponsor.  The sisters (sponsor and applicant) had not seen each other for 6 or 7 years. 

24. The sponsor’s husband clarified that when the applicant and sponsor had separated the child had been 4 or 5 months old.  The applicant has not re-partnered.  He confirmed that the applicant did not have any assets apart from the property she lived in.  He stated that they had no intention for the applicant to stay permanently Australia.  They wanted to be able to bring other family members to Australia and did not want to be prevented from doing so on the basis of any breach by the applicant of her visa conditions.

25. The sponsor’s husband claimed that he had made the error in filling in the application form for the applicant and declaring that the applicant had not been refused a Visitor visa when she had.  It had been a mistake.

26. The Tribunal also spoke to the visa applicant. She stated that she just wanted to visit her sister.  She stated that she would not work here.  Asked why she would want to leave her son at this stage of life to come to Australia, she again stated that she just wanted to visit.  She stated that her son would stay with her older sister during her time away from Laos.  The Tribunal asked the applicant how many people occupied the home she lived in and she stated that it was just herself and her son.  She stated that she had shared custody of her son. 

27. The Tribunal asked the applicant about the work she undertook in Laos and she responded, “House-keeping”.  The Tribunal asked the applicant precisely whose house she was keeping and she stated that she looked after the house of her sister and brother-in-law and managed property for them.  The Tribunal asked the applicant to explain what her work involved exactly.  She responded that she collected money and her siblings paid her on a monthly basis.  Asked how many properties were involved, the applicant stated there were more than ten. 

28. The applicant stated that she earned 2,000,000 Kit (Lao) per month.  The Tribunal queried the applicant about whether she had any savings and she stated that she did - 100,000,000 Kit.  The Tribunal asked the applicant to provide evidence that this was the case and to also provide bank information setting out transactions over a period of time. 

29. The applicant confirmed that she wanted to stay in Australia for around 4 to 5 weeks.

    cl.600.211(a)

30. 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)).

31. The Tribunal notes that the applicant has visited, as supported by the evidence of her passport, that she has travelled to Thailand previously on several occasions.  She has not travelled to Australia however.  While the Tribunal places some weight on the applicant’s previous travel within the region, the Tribunal is not convinced that the opportunities she could avail herself there are comparable to those she could provide her son in Australia were she able to achieve a migration outcome. 

    cl.600.211(b)

32. 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)):

    ·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.

33. Based on the minimal evidence regarding the applicant’s circumstances in Laos, the Tribunal has concerns about whether she has a genuine intention to visit Australia temporarily for the purpose for which the visa is granted.  This is particularly so as concerns the nature of her work and what her earnings actually are.

34. The sponsor’s spouse stated at hearing that the applicant worked in the context of a family business and therefore her wages were paid in cash.  It was therefore difficult to provide evidence of how she accumulated her savings.  The Tribunal is not only concerned about the limited evidence of the applicant actually earning 2,000,000 Kit per month (which equates to roughly AUD331) but notes there is also a paucity of evidence regarding the work it is claimed that she performs.  Even allowing for the applicant being paid in cash by her siblings, the Tribunal would have expected some explanation, for example, by the applicant and at the least her siblings, about the percentage paid of rental income to the applicant.  It is difficult to accept that the applicant’s siblings do not keep records of some sort of their earnings and of the wages paid to the applicant, even if in cash.  The applicant and her siblings, if it is true that the applicant is being paid for the work she does for them, would have come to some agreement about what she could be expected to be paid on a property by property basis, for example.

35. After the hearing the applicant has submitted evidence of having 100,000,000 Kit in a savings account (equivalent to approximately AUD16,555).  In addition, she has submitted an Account Statement from 14 February 2014 to 16 August 2019, with a balance of 4,831,200.28 (approx. AUD799.56).

36. In terms of the AUD16,555 claimed to have been saved by the applicant, the Tribunal has some concerns.  It is difficult to ascertain on the basis of the Account Statement how the applicant was able to accrue such an extensive amount given the pattern of incoming funds is not extensive or regular.  Indeed there are many withdrawals.  It may be that as the sponsor’s spouse stated, the applicant has accumulated a significant amount of cash to put away in a savings account but without corroborative material to show that the applicant had the capacity to earn AUD16,555 since September 2013, it is difficult for the Tribunal not to query how the funds were derived on an annual salary of AUD3,972 based on a claimed salary of AUD331 per month.  This is particularly so as the applicant would have expenses in relation to her child and general living expenses. 

37. Even if the Tribunal accepts that the applicant does earn AUD331 per month (and in light of the limited evidence the Tribunal has reservations) in setting herself up in Australia the applicant, even in a menial job, would be able to earn beyond that, particularly if she has aspirations for her son to study in Australia.

38. The Tribunal understands that the sponsor and her husband will be disappointed with this outcome but it is not the case that the applicant may never travel to Australia.  However, on this occasion the Tribunal found the circumstances of the applicant’s employment opaque and supported by limited evidence.  Further, the Tribunal is troubled that the applicant is prepared to leave her young son for up to 5 weeks.  While no doubt her estranged husband and siblings are willing and capable of looking after the child, the applicant’s prioritisation of utilising some of her life savings to come to Australia is troubling to the Tribunal and it has concerns that the applicant may be travelling here with the aim of forging a new future in Australia for herself and her son, particularly as she is no longer in a marital relationship with her husband.

39. The Tribunal has read the sponsor’s spouse’s submission, dated 24 April 2018, arguing that the applicant is leaving behind four siblings and her son.  The Tribunal is not satisfied that siblings of themselves necessarily form strong incentives for the applicant to return to Laos, particularly if matters of economic necessity and the prospect of a higher standard of living in Australia presented themselves.  Furthermore, the sponsor’s spouse stated that the applicant might be thinking about an education for her son in Australia into the longer-term indicating that migration to Australia had not been considered out of the question, at least by her son.

40. The sponsor’s spouse also submitted that the Department should not have had concerns that in her application she nominated her employment status as “housewife” because with a young child she needed to make the child a priority.  This may be true, however nominating her employment as having home duties is inconsistent with claims that she has a regular income and has an established life in Laos.

    cl.600.211(c)

41. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  The Tribunal considers that the sponsor and her husband are honest citizens and accepts the sponsor’s explanation that he had made an inadvertent error in filling out the application form for the applicant when he declared that she had never been refused a visa previously.  This matter has played no part in the decision-making process.  Ultimately, the Tribunal’s concerns rest on the applicant’s fiscal and personal circumstances in Laos which lend themselves to a long-term migration outcome in Australia.

42. 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

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

    
    
    

    Rosa Gagliardi

    
    

    Member