WONGKAEO (Migration)

[2018] AATA 202

WONGKAEO (Migration) [2018] AATA 202 (12 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs RATSAMI WONGKAEO

VISA APPLICANT:  Miss WICHUDA WONGKAEW

CASE NUMBER:  1705568

DIBP REFERENCE(S):  BCC2017/385630

MEMBER:Angela Cranston

DATE:12 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 January 2018 at 10:39am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream –Previously breached visitor visa conditions – Remained unlawfully and worked in Australia – Voluntarily returned to Thailand – Business interests and family in Thailand – Family ties in Australia – Not a genuine temporary entrant

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 Schedule 2 cls 600.211, 600.211(a)-(c), 600.612, 600.231

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 25 February 2017 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 27 January 2017. 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 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.    In her application, the applicant stated she wanted to visit for three months, that she was born in 1960, was unmarried, had 7 siblings in Thailand and one in Australia, and wanted to come to Australia for a holiday, and tour parts of Australia in a caravan with her sister and her husband. She also stated that she had overstayed her Australian visa from 13 August 2007 to 6 September 2009 when she left of her own volition and that at the time visa conditions were not understood.  

5.    The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 for the following reasons:

In assessing whether or not the applicant intends a genuine temporary stay, I have taken into account information provided in the application and all supporting documents relating to the applicant’s personal circumstances, commitments and incentive to return home.

The applicant indicated that she is leaving seven siblings in Thailand during the proposed visit. While I acknowledge that the applicant’s family may provide some incentive to return, the presence of these family members are not sufficient to demonstrate that the applicant intends a genuine temporary stay in Australia and will depart within the validity of her visa, due to concerns raised by the applicant’s limited international travel.

In response to the employment status of the applicant on form 1418, the applicant declared ‘other’ and wrote ‘receives rent for [a business] conducted by her brother’. While the applicant’s employment claims are not doubted, I have concerns that the applicant’s employment may not provide sufficient incentive to induce her to return to Thailand within the validity of her visa.

I have concerns regarding the immigration history of the applicant. Departmental records indicate that the applicant travelled to Australia on a 676 visa and arrived on 13/8/2007 with a lawful unto date of 13/11/2007. This visa expired on 13/11/2007, however the applicant remained in Australia unlawfully until 22/9/2009 when she departed Australia. The applicant’s previous non-compliance raises serious concerns and indicates a high likelihood that the applicant does not intend a genuine temporary stay and casts doubt on the applicant’s declared intentions of complying with the conditions of another Australian visa.

I acknowledge that the purpose of the applicant intended travel is to visit their family. While the applicant’s purpose of visit is noted, this in itself does not demonstrate that the applicant only intends a genuine temporary stay.

6.    Prior to hearing, the Tribunal received the following letter:

My wife Ratsami Wongkaeo and I recently received the news that Ratsami’s sister had her application for sponsored family has refused.

I/we have on separate occasions asked Wichuda to come to Australia for a holiday. Two previous applications had also been refused for similar reasons. I had also strongly advise family members that any applications for visas to my country should be honest, squeaky clean, factual and consistent. My previous dealings and experiences with Ratsami’s Thai based, third-party visa consultants, was less than amicable. The information and assistance they provided was at best misleading and minimal.

Similarly, in 2013 a number of family members decided to visit Australia for only a few week holidays, through the 600 Visa process via the Thai office and were all subsequently refused. I have copies of the refusals, they are all identical, alluding to nearly defamatory reasons and embarrassing. Some of since visited Europe and Japan and have no intentions of wasting hard earned cash on Australian visa applications.

As a former defence risk manager (as CSA) and facilitator I would have to agree with the assessment on Wichuda’s previous visa applications based on her limited information provided and subsequent interview history. I was not privy to the content of her previously Thai-based applications or interviews as unfortunately I do not speak or understand Thai. The previous assessment results may have been more favourable with my intervention and guaranteed content.

In mitigation of this unfortunate consequence may I clarify the following:

Wichuda is not an asylum seeker, potential terrorist or a person of mal intent.

She lives quite comfortably in Thailand and would not be able to do the same in Australia.

She is one of many children born and raised in the Issan provinces of North Thailand. She, like my own wife, only managed to gain fourth year academically which tends to limit her vocation and understanding of government bureaucracy and

Her main role in life was, a family decision,  where she was responsible for the care and welfare of her ageing parents and siblings until her parents died. She only recently relinquished care of her brother, who suffered a stroke, to his own children.

Her life experience and knowledge has been until recently quite limited. I really do not think she understands the visa questions, the ramifications of false input or the consequences of her answers.

The Thai authorities also changed her last passport renewal name from Wongkaeo to Wongkaew without her prior knowledge.

I have listened to some of the advice given to her and others through third parties and visa consultants and was appalled on the recommendation on how to complete applications. She really understood she had to make the applications ‘look good’ so they would pass scrutiny.

In response to notification of refusal of application decision record I cannot agree with most of the findings and reasons for the decisions particularly as Graham is most likely basing his assessment via a common black and white risk table, as I might have done should I have been in his position. I consider his assessment is based entirely on her past failure to comply with condition s600.211(a) back in 2007-9. I can only advise that the situation has changed since Wichuda was last in Australia. I understand that Wichuda did not comply with visa conditions last time whether through ignorance or otherwise. However she will comply with conditions 600.211(b) with any future visa should the Minister choose to give her the benefit of the doubt,,e.g. a second chance. As her brother-in-law, I will fully explain each condition as laid down in criteria...

Having socialised and stayed with most family members on a number of occasions over the last six years, which includes close family events such as funerals, weddings and house warmings (the house warming was attended by local government and Wat leaders, I took many photos) I find the family structure very strong, loyal and united. The elder family members, albeit with little to no education, but large in resolve, are hard-working and were responsible for making sure the younger members receive better education and support. The younger members mostly received tertiary education and include a bank manager, senior schoolteacher (husband is a Uni director) and business people (Witalayi owns two large [stores], wife owns and operates a large new beauty salon). Those that could not progress through age or medical issues are supported by family elements, mainly Wichuda.

Although Wichuda’s experience with international overseas travel is limited, she has experience with touring nearby ASEAN countries such as Laos, Vietnam and China [etc].

Wichuda’s main role as a 56-year-old, single female is still supporting her siblings and others in various business and enterprises when and where required or as they become available. She was willed a large portion of the original family building (supported by Google photograph) in Nakhon Phanom (we maintain a third floor apartment in it) and receives rent from her brother for use of the shopfronts of the building. She works whenever it is available which is not often in a small town like Nakhon Phanom. She was unemployed prior to her last visa as she was hoping to have a three-month holiday in Australia with her sisters, for which she had saved a little money for support. She is also a part owner (1/10) of her brother’s second [store] he recently opened and receives a percentage of profits. (Legal documents and photos can be supplied if required). She owns her own car and managers life quite well. She has no reasonable motive to leave Thailand on a permanent basis.

I can vouch that Wichuda intends a genuine visit as

Her first time was as a lone visitor without any family support or guidance and had only a short time before, relinquished responsibilities to her mother through her passing;

I (Michael Grischeff) will be assisting with the plane tickets, supporting her during her stay and picking her up and delivering her back to the airport

Our (Michael and Ratsami) intention during her stay is to go touring about Australia for a few months in our caravan;

She now has a number of family members living in Australia and other Thai-based members of the family may again wish to visit Australia in the near future. She would not wish to jeopardise their own visa applications again.

I for one as a former Australian Defence Force member and Australian public servant and now a family member will not allow any further transgressions..

7.    A further letter was provided as follows:

Full name and date of birth, dates of arrival of any other of your close relatives (including parents, brother, sister, child, uncle, aunt, cousin, niece or nephew) who have come to or visited Australia within the past 10 years:

Sudarat Wongkaeo, sister of Ratsami Wongkaeo

Arrival/Departure

5 Feb 05-28 Apr 2005

7 Dec 08-30 Dec 2008

6 Aug 2011-10 Sep 2011

22 Feb 2017-19 May 2017

Chairat Rueangmongkonloet, Brother in law..

Sukanaya Nanavati (nee Wongdaeo) now Australian citizen, niece of Ratsami Wongkaeo…

Updated information about the visa applicant’s employment and financial situation in their home country:

Wichuda owns her home (half of three story duplex (half of three story duplex, Nakhon Phanom TH, photo attached). Her younger brother (Somchai Wongkaew) pays rent to her (currently [amount]BHT per month), for use of her ground floor area for [his business], reception and family space.

She has investments and shares in another younger brother (Witayalai Wongdaew)  2nd [store] (evidence to be presented at hearing)

Wichuda is an [occupation], on an as required basis, with monthly cash payment from friend’s Nakhon Phanom [business]

[She works] on an as required basis, for another friends’ [business].

8.    The review applicant appeared before the Tribunal on 14 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Michael Grischeff. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

9.    When asked to comment on the Department’s decision, the review applicant stated the applicant looked after a lot of people, engaged in charitable activities and had her own house which she leased to her younger brother.  

1. The Tribunal put to her that the department was not satisfied that the applicant had enough reasons to return to Thailand if she came to Australia and had also stated the last time she came to Australia on a three month visa, she remained in Australia for nearly 2 years. The review applicant stated that the first time she arrived in Australia she met a friend who asked her to help with a job and that was why she was here for two years but after she went back to Thailand she also had her own job and was helping a [firm] and also worked as a [casual employee]. She also stated she had a lot of charitable works and also organised social gatherings. She stated the reason she wanted to come to Australia was to see the review applicant and her husband who had not seen her for some time. She also stated when she went back to Thailand she had to look after her sister who had Alzheimer’s disease. The review applicant stated the applicant had eight siblings in Thailand (one other had died and one was missing). In Australia she only had one sibling (the review applicant).

2. When asked if there are any other reasons why she would return to Thailand, the review applicant stated the applicant had her own business activities in Thailand that is, she was a shareholder with a younger brother in [a store], she helped out in a [firm] and she helped out as a [casual employee].

3. The review applicant stated she was willing to provide a bond of up to $10 000 which she understood she would lose if the applicant breached conditions.

4. The Tribunal then spoke to the applicant who stated that in 2005 or 2007 she came to Australia and met a friend who asked her to do business [and] she went back because her brother was not well and her sister had issues with stress.

5. The Tribunal put to her that she stayed in Australia for nearly 2 years without permission and asked if she came again, would she do the same thing. She stated she would not do that again and would comply with tourist visa conditions because she had her own business, had a home in Thailand and she had an older brother who was unwell.  She stated the review applicant had married, the applicant was getting old and she wanted to have a holiday with the review applicant.

6. The review applicant stated she married in 2011. She stated she thought the applicant had been through a lot of traumatic events and she wanted her to visit.

7. The Tribunal then spoke to Mr Michael Grischeff. He stated he had been involved in the family since 2010, he had been on holidays with the majority of the review applicant’s sisters including the applicant and knew her very well. He said she was basically honest, that she had screwed up that she had been in Australia and helped a friend and had overstayed her Visa. He stated back then she did not understand the repercussions. He also stated that he thought she thought that because of her actions she had jeopardised other family members chances of coming to Australia and that in 2011, when they tried to come, they had all been rejected. He stated she was not a bad person, she would go home on her own volition because he would ensure it. He stated over there she was very social, she was not smart, none of the girls in her family had received much education. He stated she would prove that she would do the right thing. The Tribunal put to him that not only did she overstay she worked without permission to do so. He stated she would not do that again.

8. The Tribunal then spoke to Sukanya Nanavati who was the applicant’s niece. She stated she lived in Australia for 14 years and the applicant and her mother were very close. She stated the applicant was the carer for a lot of people and she deserved some happiness in her life and needed a holiday. She had also looked after her mother. She stated the applicant was hardworking and had property with no mortgage in Thailand.

9. The Tribunal put to the review applicant that the case was not easy because the applicant came to Australia and overstayed for nearly 2 years and worked when she had no permission to do so. The review applicant stated that the applicant had donated time to look after the family to the opportunity where she had not been able to marry and she just wanted her to come for a holiday and she would go home after. She also stated she was old now and did not need or deserve to work.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. In the present case, the visa applicant seeks the visa for the purposes of visiting the review applicant, her 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. In this case, the applicant previously visited entered Australia on a tourist visa that was valid for three months on 9 May 2005 and departed on 5 June 2005. She again entered Australia on a three month tourist visa on 13 August 2007, met a friend who asked her to do business [in] breach of her tourist visa condition and did not depart until 22 September 2009.  

5. 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.

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

7. The Tribunal has given consideration to the applicant's incentives to return to Thailand. The applicant is a 58 year old unmarried woman who, none the less has considerable family in Thailand, some of whom are unwell.  She also engages in social and charitable activities. Although she stated that she was unemployed in her application, submissions prior to hearing indicated that she works [on] a need basis at a friend’s [business] and on a need basis for another friend’s [business]. She is also a shareholder in her younger brother’s [store] and owns her own home and her younger brother pays rent to her for the use of floor space. 

1. The Tribunal is satisfied that the applicant is part of a loyal and united family structure in Thailand and that she supports her siblings and others. The Tribunal is also satisfied that the applicant has a home, business interests and occasional work in both a [firm] and [in another role] and that these are reasons that would encourage her to return to Thailand after any period of authorised stay.

2. However, the applicant also has ties to Australia, that is, the review applicant is here. In addition, she previously came to Australia and breached visa conditions in that she unlawfully remained in Australia for nearly two years and worked when she had no permission to do so. In doing so, the Tribunal finds that the applicant has displayed little regard for Australian law. Although the applicant suggested in her application that her visa conditions at that time were not understood, the Tribunal is not persuaded that willful ignorance of Australian visa law is an excuse for what the Tribunal considers was an intentional act to remain and work.

3. Although a number of years have now passed, and it has been submitted that the applicant has had other family members travel to and depart Australia, the Tribunal is not satisfied that the applicant will not again breach Australian law if she decides that it suits her circumstances. In reaching this conclusion, the Tribunal has considered the review applicant and her husband’s evidence that they are willing to provide a bond and vouch for the applicant.

4. Both the review applicant and her husband presented as impressive witnesses and the Tribunal has struggled to make a decision as a result.  However, the applicant is an adult and responsible for her own decision-making.  Because the applicant was previously in Australia and remained here unlawfully and worked for what the Tribunal considers to be an extensive period of time, the Tribunal is unconvinced that the review applicant and her husband are in a position to dissuade the applicant should she again decide to breach Australian law.

5. 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

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

Angela Cranston
Member