Vu (Migration)

Vu (Migration) [2017] AATA 2608 (12 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tuan Anh Vu
CASE NUMBER:  1700748
DIBP REFERENCE(S):  BCC2016/4326115 CLF2017/9715
MEMBER:Ian Garnham
DATE:12 September 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 12 September 2017 at 12:00pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Purpose of visit (business) – Applied through the incorrect stream – Lodged a subclass 187 Regional Sponsored visa – Held previous work and bridging visas – Significant business interests in Australia – Tribunal is unable to consider both visa applications together
LEGISLATION
Migration Act 1958 ss 45AA, 65, 349, 349(1), 349(4)
Migration Regulations 1994 r 2.03 Schedule 2 cls 600.211, 600.211(a), 600.221(b), 676.211(a), 676.211(a)(ii), 600.222
CASES
Minister for Immigration & Multicultural Affairs v Saravanan [2002] FCAFC 81
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 January 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 22 December 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.
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.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.221 because they were … not satisfied the applicant intends to remain in Australia as a visitor as their primary purpose for requesting a further stay is related to business.
The applicant appeared before the Tribunal by conference telephone on 28 April 2017 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent who also attended the hearing by conference telephone. After the hearing the registered migration agent provided a submission dated 22 May 2017 (the submission).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether cl.600.221 is met, which requires the Tribunal to be satisfied that the visa applicant intends to stay in Australia for a purpose that is not related to business or medical treatment.
In the present case, in the original application, the visa applicant stated they seek the visa for the purposes of; attend further meetings with professional advisors as I am co-Director of a startup.
This is not a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222. Clause 600.222 does not apply to the circumstances of this case.
Clause 600.221 states;
The applicant intends to visit Australia, or remain in Australia:
(a) to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or
(b) for any other purpose that is not related to business or medical treatment.
This clause clearly identifies that, to meet its requirements, the purpose of the visit must not be related to business or medical treatment. In his application the stated sole purpose for applying for the visa is to conduct business.
At the hearing, the review applicant revised the intended purpose for applying for the visa and said that the purpose of his application is to now visit relatives and friends. He also said that since 2009 he has focused on establishing his business but this is now mostly accomplished and he now wants to use time in Australia to visit relatives.
The Tribunal has considered the Movement Details of the review applicant and notes that:
·     On 13/05/08 he was granted a subclass 457 visa that ceased to have effect on 13/05/12. In this 4 year period the review applicant visited Australia 7 times and was present in Australia for 695 days.
·     On 14/05/12 the review applicant was granted a Bridging visa, and then granted subsequent bridging visas until 17/10/15 when he was granted a subclass 601 Electronic Travel Authority visa that ceased to have effect on 03/01/17. In this 3½ year period the review applicant travelled to Australia on 15 occasions and was present in Australia for 513 days.
·     In the period; 17/10/15 to the date of hearing, 28/04/17, the review applicant has visited Australia on 9 occasions and has been present in Australia for 474 days.
This means that over the last 9 years, the visa applicant has spent more than 4½ years inside Australia.
At the hearing the representative advised that the visa applicant has also lodged a subclass 187 Regional Sponsored visa. They also argued that the Tribunal has the power and jurisdiction to assess this application as one that was lodged in the Business Visitor stream rather than the Tourist stream.
Section 65 of the Act empowers the Minister to either grant or refuse to grant the visa, the decision depends on the Minister being either satisfied that certain requirements are met or satisfied that they are not met. There is no information before me that indicates the Minister has a general power to amend and reclassify visa applications. Section 45AA of the Act provides for the application for one visa to be taken to be the application for a different visa in specific circumstances that do not apply in this matter. Indeed, Regulation 2.03 ensures that an application can only be assessed against one of the four streams within the subclass 600 visa.
Section 349 of the Act sets out the Tribunal powers upon the review of decisions. Subsection 349(1) confers all of the powers and discretions that were conferred on the delegate who made the decision. However, subsection 349(4) prevents the Tribunal from varying, setting aside and substituting or purporting to make a decision that is not authorised by the Act or the Regulations.
Furthermore, the practice directions of this Tribunal generally preclude Tribunals from assessing issues that have not been dealt with by the delegate who made the decision.
8.2As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.[1]
[1] Conducting Migration and Refugee Reviews – Assessing criteria in dispute
In the post hearing submission, the representative has argued that Departmental policy promotes a flexible approach to the assessment of tourist visa applications and states delegates should not simply refuse the application; …because the major part of the intended activity is not within the stream applied for.
The relevant general policy for the four visitor streams states the following:
If a person mistakenly applies for the incorrect stream it is not possible for them to transfer to another stream; a fresh application in the correct stream would need to be made and the appropriate VAC paid.[2]
[2] PAM3 GenGuideH – Visitor visas – Visa application and related procedures. Australia’s visitor visa program – an overview. Visitor visa streams, The four FA-600 streams
While this policy demonstrates that once an application to a stream is made, it cannot be transferred by a delegate to a different stream, it also highlights that key differences exist between the streams that cannot be circumvented by simply changing streams or the purpose for applying for the visa.
The stream specific policy states that an applicant’s statement of intended activity should be accepted at face value unless there are reasons to not do so.
An applicant’s statement of intended activity in Australia should be taken at face value and, if appropriate, this criterion should be considered satisfied. The genuineness of this stated intention is assessed under the genuine temporary stay criterion.
Whilst I acknowledge that the policy does not discourage flexibility, it does not go to the extent of doing so when all of the anecdotal and application evidence suggests that the primary purpose of a visit; is for reasons that are expressly prohibited by the legislation.
The amount of time that the visa applicant has already spent in Australia over the last 10 years (roughly half as set out at paragraph 14 above) is indicative of someone who has significant business interests in Australia. It is also noted that the visa applicant’s two previous reviews where he appeared before and presented submissions to this Tribunal in respect of other visa applications; in August 2014 and July 2015, indicated that his primary reason for being in Australia at those times was solely related to his business.
It is also argued in the submission that the Full Federal Court judgement in Saravanan’s case[3] contains similar facts that may be applied to this matter. In that case the Court considered a similarly worded ‘time of application’ criterion for a subclass 676 Tourist (Short Stay) visa.
[3] Minister for Immigration & Multicultural Affairs v Saravanan [2002] FCAFC 81
The applicant applied for the short stay visa for the expressed purpose of enabling him to apply for a subclass 457 Business (Long Stay) visa. Prior to this, the applicant had been in Australia for several years on the basis of several different visas and visa applications. It was agreed that the applicant did not want to conduct business during the period of this visa but rather to remain onshore so that the subclass 457 Business (Long Stay) visa application could be lodged and processed. The clause in question is as follows:
“676.21       Criteria to be satisfied at time of application
676.211        The applicant:
(a)    seeks to visit Australia, or remain in Australia as a visitor:
(i) for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant; or
(ii)for a purpose other than a purpose related to business or medical treatment.
(b)     either:
(i)has adequate funds, or access to adequate funds, for personal support during the period of the visit;
or
(ii)    meets the requirements of subclause 676.221(4).
The former Migration Review Tribunal found that the applicant sought to remain in Australia for a purpose related to business and he was expressly prohibited from doing so by cl.676.211(a). Whereas the primary judge in the Federal Court found that if the purpose of the visit was not one or other of those expressly precluded by cl.676.211(a)(ii) it mattered not what the applicant’s intention was at the end of the visa period.
On appeal to the Full Federal Court, the minority agreed with the majority that that the applicant’s primary purpose for remaining in Australia was because Australia was a convenient place from which to apply for a long stay temporary business visa. However, because the applicant wanted to stay in Australia so that they could apply for a business visa and then conduct business, the relationship was so direct that there was still a relationship between business and the purpose of the application in question. Therefore Drummond J would have allowed the appeal.
In contrast, the majority found, by different means, that the purpose of the application was unrelated to business and therefore complied with cl.676.211(a)(ii).
Marshall J was satisfied that during the currency of the visa, the applicant would; …not engage in business and leave Australia at the expiry of the visa if he had not obtained a business visa by then[4]. Because the applicant did not intend to engage in business during the relevant period, his purpose for seeking the visa was not related to business.
[4] At paragraph 36
Finkelstein J approached the issue by enquiring how direct the connection must be between ‘seeking to remain in Australia’ and ‘business’. Having found that the purpose for seeking the visa was to remain in Australia; he considered how close the connection was between the applicant’s need to obtain a tourist visa and the applicant’s ultimate intention to operate a business in Australia. They concluded:
In due course he may come to Australia to operate that business. Is the purpose “related to business” for the purpose of cl.676.211. I think not. The relationship is indirect and is far too remote.[5]
[5] At paragraph 53
At the hearing the visa applicant said that ever since 2009 in Australia his focus has been to start-up businesses. The current business is the second one he has started up. He said that he wants the current visa to have a rest from the business and explore Australia and travel to cities like Adelaide, Sydney and Brisbane which he has not been to. He conceded that when he goes to these cities he intends to discuss business proposals with a view to expanding his businesses to these cities. He now claims that he has overlapping priorities whereby he seeks to holiday and also conduct networking for a second start-up company.
In response to the delegate, on 3 January 2017[6], the visa applicant advised that he was requesting a further stay in Australia for the dual purpose of visiting relatives and undertaking further meetings related to his company business.
[6] At F: 50 (DIBP file)
At the hearing he said he has about 7 uncles, a brother and his parents living in Australia. He also said that historically all of his previous time in Australia has been spent on establishing his business.
In the submission, the visa applicant names 27 relatives that he wants to visit, who he claims are all resident in Australia as citizens or permanent residents. Of these 27 people only two are close relatives (mother & brother) as designated by cl.600.211(a) as people that the visa applicant intends to visit.
Consideration:
In my view this case can be easily distinguished from Saravanan’s case because of the expressed intention of the visa applicant with respect to how he will spend his time for the visa period, if the visa is granted. Based on the visa applicant’s own evidence, he will be conducting business as he appears to have done for the large part of the time he has been in Australia.
I am not able to find that if the visa is granted, the visa applicant will not be involved in business as was the case in Saravanan. In addition, the visa applicant’s extensive time already spent in Australia (as set out at paragraph 14) and his stated extensive involvement in business activity during those significant periods indicates that, if the visa is granted, significant activity and time will be related to business.
The visa applicant has also acknowledged; at the hearing, in his original application, and in his registered migration agent’s submission to the delegate that if the visa is granted he will conduct meetings with co-directors, investors and professional advisors (accountants and lawyers). These are indisputably business related activities and the participation in these activities is an impermissible reason (purpose) for applying for this visa. The visa applicant’s application for this visa is directly linked to his business activities and as such does not meet the requirements of cl.600.221(b).
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 can be granted, and finds that the requirements of cl.600.221 are not met.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Ian Garnham
Member

[2017] AATA 2608

12 September 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction