Woodman (Migration)

[2018] AATA 372

Woodman (Migration) [2018] AATA 372 (19 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mr Victor Woodman
Mr Dennis Woodman
Mrs Thuy Woodman

VISA APPLICANT:  Mrs Thi Quynh Trang Nguyen

CASE NUMBER:  1708568

DIBP REFERENCE(S):  BCC2017/819806

MEMBER:Adrienne Millbank

DATE:19 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 19 February 2018 at 4:13pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Whether applicant has a genuine intention to stay in Australia temporarily – Weak ties to country of residence – Family and friends in Australia – Adverse information previously submitted to Department

LEGISLATION
Migration Act 1958, ss 65, 359AA,
Migration Regulations 1994, 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 27 March 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 1 March 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 Tourist 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. The Delegate was not satisfied that there was a genuine intention to stay temporarily in Australia.

5. Two of the review applicants, the applicant’s mother and step-father, appeared before the Tribunal on 31 January 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa applicant was born in 1989 in Vietnam. She has been living in Germany since 2010, when she was sponsored to visit by her maternal uncle.  She married a Thai national in Denmark on 7 July 2011. At the time of application and decision, she was separated from her husband.

8. At the time of application and decision, the applicant was working as a waitress in a café and a Sushi shop in Berlin. She provided copies of certificates and a diploma, showing that she completed courses in German and fashion design in Berlin.

9. The second-named review applicant (the review applicant) is an Australian citizen by birth, and the applicant’s step-father. He married the applicant’s mother (the third-named review applicant), who was born in Vietnam, in 2009, and she has since obtained Australian citizenship. The applicant has one brother (the first-named review applicant), who migrated to Australia with his mother in 2009, and is also an Australian citizen. At the time of decision, he was living and working as an apprentice chef in Germany.

10. According to the applicant’s step-father and mother, the applicant wanted to visit the family in Australia because she hadn’t seen her mother since 2014. According to the applicant, in her application form, the purpose of her intended visit was tourism. She responded ‘No’ to the question ‘Will the applicant visit any relatives, friends or contacts while in Australia’. She claimed that her intended visit would be self-funded, and that she had saved 3500 Euros. 

11. 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.

12. In the present case, the visa applicant seeks the visa for the purposes of a three month stay for tourism purposes. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

    Previous compliance (cl.600.211(a))

13. 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.

14. The applicant visited Australia once before, from 16 December 2013–25 January 2014. No evidence was before the Tribunal to indicate that she did not comply with the conditions of her visa at this time.

    Visa conditions (cl.600.211(b))

15. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

16. The applicant declared at the time of application that her intended visit would be self-funded, and evidence was provided at the time of application, in the form of a bank statement, that she had savings in the order of $3500 Euros.  Her mother and step-father at hearing advised that she would use the family home as a base, from which she would travel to visit old school friends who now live in Melbourne. The Tribunal is satisfied that the applicant has the funds and family support to remain in Australia for three months without working, and there is no information or evidence to indicate that she is seeking to come to Australia for employment purposes. Therefore she meets condition 8101. However, for the reasons discussed below, the Tribunal is not satisfied that the applicant does not intend to move permanently to Australia, and is of the view that she would seek out employment opportunities while in the country. The Tribunal notes that she has been employed on a casual, cash basis in the fashion and garment industries in Germany and Vietnam.

17. The applicant declared on her application form that she has no intention of studying in Australia, and in the absence of information or evidence to the contrary, the Tribunal is satisfied that the applicant does not intend to engage in study or training in Australia for more than three months. Therefore the applicant meets condition 8210.

18. All other relevant matters (cl.600.211(c)): genuine intention to stay temporarily

19. In response to a request from the Department at the time of application, the applicant provided a copy of a letter of invitation from her mother and step-father, which included the following:

    Now (the applicant) has decided to come to Australia to spend time with us. We are also hoping she may stay here this time and become an Australian citizen as her brother did … We have a quality of life second to none here and are very happy together. Now that my daughter is coming over to visit us, the family will once more be reunited, hopefully for good this time … Please consider this letter when you process her application to come here to Australia.

20. The Tribunal advised the review applicants, pursuant to s.359AA of the Act, that the information in this letter would lead or could contribute to the decision under review being affirmed. The Tribunal advised also that it had records of the review applicants’ and the visa applicant’s international movements. The Tribunal advised the review applicant that the letter to the Department was relevant because it indicated that the applicant did not intend genuinely to visit temporarily, and the movement records were relevant because they indicated that the parties could have pursued opportunities to see each after the applicant left Australia in January 2014. (The applicant’s mother had claimed in a written submission that she was desperate to re-unite with her daughter because she had not seen her since her visit to Australia from 16 December 2013–25 January 2014.)

21. The review applicant advised that the parties did not have a representative, and that he did not need an adjournment in order to consider his response to the Tribunal’s concerns. He referred the Tribunal to a letter provided by the applicant’s brother, where he claimed that his parents only wanted ‘to make it easier for my sister’, and that if the applicant was an Australian citizen, she could visit without the delays involved in applying for Visitor visas. In an email dated 24 April 2017, the review applicant further advised the Tribunal that his and his wife’s original letter ‘was in fact a misunderstanding of the reasons why my daughter was coming to Australia’, and declared her intention, at this stage, was to come for a three month visit, not as a permanent resident applicant. When questioned further at hearing, the applicant’s father maintained that while he and his wife wanted the applicant to move to Australia, the applicant on this occasion intended only a temporary visit. He stated several times that what she decided to do in the future, and where she decided to live, was up to her; it was her decision.

22. At hearing the review applicants argued that the reason the applicant would return to Berlin after a three month visit is that she is establishing a career as a fashion designer there. Evidence was provided that the applicant obtained a diploma in fashion design in 2015, and also that she has completed courses in the German language. No evidence was provided that the applicant has ever been in a remunerated position in the fashion industry in Germany. At hearing the applicant’s mother claimed that her daughter worked as a ‘free-lancer’, and that she had worked on a contract basis in the garment industry in Vietnam for five and a half months in 2017. Evidence was provided, and the applicant’s mother confirmed, that at the time of application and decision, the applicant was working as a waitress in a Sushi shop in Berlin, for around 600 (net 490) Euros a month.

23. The review applicants advised that the applicant first went to Germany in 2010, as a visitor, sponsored by her uncle.  They confirmed that she obtained residence through marriage. The Tribunal asked the review applicants about the applicant’s marriage and subsequent separation. They claimed not to know where the parties married, or when and why they separated. The applicant’s step-father acknowledged the possibility that the applicant married in order to obtain resident status in Germany.

24. The Tribunal noted that the applicant’s mother had made seven trips abroad since July 2015, and asked why she hadn’t met up with the applicant, in Europe or Vietnam, during any of these trips. She replied that she and the applicant’s step-father had been on two cruises to Europe, and that she travelled often to Vietnam to visit her elderly mother. When the Tribunal asked the review applicants why they didn’t meet up with their daughter in Europe when they travelled there, they said it was not convenient because they were on pre-paid cruises. The applicant’s mother subsequently acknowledged that she saw her daughter, in Paris, over several days, in 2015. When asked why they had stated that they hadn’t seen their daughter since 2014, the applicant’s mother stated that she had meant that she hadn’t seen her in her own home in Australia, since 2014, and the applicant’s step-father stated that he was confused.  The Tribunal asked the applicant’s mother why she didn’t see her daughter in Vietnam in 2017, when her daughter spent five and a half months there. The applicant’s mother stated that the dates of her travel did not coincide with her daughter’s stay in Vietnam.

25. Evidence was provided that the applicant rents a flat in Berlin. The review applicants advised that at the time of decision, her brother was also in Berlin, where he is working with his uncle as an apprentice chef, and living with a friend, but that he will return to Australia in July 2018. They advised that the applicant is, at the time of decision, on speaking terms with her uncle, with whom she had had a falling-out. They confirmed that the applicant lives alone, and that her uncle lives in a city 500 kilometres from Berlin.

26. The applicant, on the evidence provided, does not have a career in fashion design; or stable employment; or a level of income such as would provide an incentive to return to Germany. Nor does she have family to return to in Berlin. As noted above, she is separated from her husband, and lives alone. The applicant’s family and close friends from her school years are in Australia. The Tribunal notes, from the review applicants’ written submissions and testimony at hearing, that they want their daughter to join the rest of the family in Australia.

27. The Tribunal does not accept as credible the review applicants’ claim at hearing that they have not discussed with the applicant the desirability of her moving to Australia. Further, the Tribunal does not accept the review applicant’s claim that the purpose of the applicant’s visit is to see her family whom she hasn’t seen for four years, since January 2014. The applicant can see her brother in Berlin; she saw her mother during the review applicants’ trip to Europe in 2015; and the Tribunal is of the view that the review applicants could have seen the applicant during their subsequent trip to Europe, or during her stay in Vietnam in 2017, if sufficiently motivated.

28. The Tribunal advised the review applicants that it was unconvinced by their claim not to have discussed with the applicant the possibility or desirability of moving to Australia, and invited them to respond. The applicant’s step-father repeated his previous observation that the applicant was a grown woman who would make her own decisions, in her own time, about where to live. He stated further that it was a sensitive issue, given the level of debate in Australia about boat arrivals and visa over-stayers.

29. The Tribunal found the review applicants at hearing to be deflective and evasive on the issues of the applicant’s marriage and married life in Germany, and her intentions.

    Findings

30. 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

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

    Adrienne Millbank
    Member