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austlii:cth/MRTA/2000/1808
appellant. Remitted to Immigration for reconsideration with direction that visa applicant be taken to have met clauses 676.211, 676.212, paragraphs 676.221(2)(a), (b) and (c), and clause 4011 of Schedule 4,...
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The Migration Review Tribunal overturned a decision to refuse a tourist visa to a Cambodian woman who wanted to visit her sister in Australia. The Tribunal found that despite a 'risk factor' applying to Cambodian women over 20, this particular applicant had strong reasons to return home, including her job and her cultural duty to care for her mother. The Tribunal sent the application back to Immigration with instructions to grant the visa, subject to a condition preventing further visa applications while in Australia.
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CATCHWORDS: Subclass 676 - genuine visit - adequate funds - risk factor applies -
DECISION: The Tribunal remits the application made by the visa applicant for a Short Stay (Visitor) (Class TR) visa to Immigration, for reconsideration with the direction that the visa applicant is to be taken to have met the following criteria:
* paragraphs 676.221(2)(a), (b) and (c) of Schedule 2
* clause 4011 of Schedule 4, one of the requirements of paragraph 676.221(2)(e) of Schedule 2
This visa, if granted, be subject to condition 8503
1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the delegate). Ms Thearum Sam (the 'visa applicant'), a national of Cambodia, born on 3 May 1974, applied for a Short Stay (Visitor) (Class TR) visa on 29 March 1999. The delegate's decision to refuse to grant the visa was made on 27 April 1999.
2. Mrs Thary Sam (the `review applicant'), the sister of the visa applicant, lodged an application for an internal review by a review officer with the Department on 13 May 1999. This became an application for review to the Migration Review Tribunal on 1 June 1999 by way of a transitional provision in the Migration Legislation Amendment Act (No.1) 1998.
3. The Migration Act 1958 (the Act) and the various regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Other matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural Affairs ('Immigration'). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.
4. Class TR contains one visa: the Subclass 676 (Tourist (Short Stay)) visa. The Tribunal must affirm the decision under review if one of the criteria essential for the grant of the visa is not met. On the other hand, if the Tribunal finds that one or more of the criteria are met, it may remit the application for the visa to Immigration with a direction that specified criteria have been met, and it is then a matter for the Minister or a delegate to consider the remaining criteria. The Tribunal's consideration is therefore usually limited to what might be described as the criteria in dispute. The criteria and policy relevant to this review are:
Legislation: Part 676 of Schedule 2 to the Regulations
Directions: Policy Directions No.s 1 and 2 of 1996 issued by the Minister under section 499 of the Act
Policy: Procedures Advice Manual 3: Generic Guidelines H - Visitor visas
Procedures Advice Manual 3: Schedule 4 - Public interest criteria - criterion 4011
5. The Tribunal generally has regard to the regulations as the regulations stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.
6. The Tribunal has before it in evidence the following documents:
D1 DIMA case papers, page numbered by the Department 1-25.
7. The delegate's letter advising the visa applicant of the decision stated that she was not satisfied that the visa applicant intended a genuine visit to Australia.
8. The criteria for a Subclass 676 visa relevant to the Tribunal's consideration are:
* that the visa applicant 'seeks to visit Australia ... for the purpose of visiting an Australian citizen or Australian permanent resident, who is a parent, spouse, child, brother or sister of the [visa applicant]' and 'has adequate funds, or access to adequate funds, for personal support during the visit' (clause 676.211 and paragraph 676.221(2)(a))
* 'the period of stay in Australia proposed in the application does not exceed 3 months' (clause 676.212 and paragraph 676.221(2)(b))
* the visa applicant satisfies the decision-maker that `the expressed intention of the [visa applicant] only to visit Australia is genuine' (paragraph 676.221(2)(c))
9. In this case, the visa applicant is also required to satisfy the decision-maker that `having regard to the visa applicant's circumstances in the visa applicant's country of usual residence, there is very little likelihood that the visa applicant will remain after the expiry of any period during which the visa applicant might be authorised to remain after entry'. This additional requirement applies because Gazette Notice 21 of 26 May 1999, Public Interest Criteria - Risk Factor specifies that females from Cambodia over the age of 20 years are a class of persons affected by the risk factor (see paragraph 676.221(2)(e) of schedule 2 and clause 4011 of Schedule 4 and Gazette No. GN 21 of 26 May 1999).
10. The Minister has issued directions under section 499 that are relevant to these criteria - Policy Direction No. 1 of 1996 in relation to `genuine visit', and Policy Direction No. 2 of 1996 in relation to `adequate funds'. Having regard to the criteria set out in the legislation and the considerations set out in those directions, the issues raised by this matter are discussed under the following headings:
The purpose of the visa applicant's visit, the duration of stay proposed and any other plans which the visa applicant has made for the visit, relative to the visa applicant's personal responsibilities and the financial means and earnings and the level of support assistance available to the visa applicant
In her primary application, the visa applicant has stated that the reason she wants to visit Australia is to visit her sister for the birth of her second child.
The evidence on file indicates that the review applicant will meet all associated costs of the trip including costs incurred while the visa applicant is visiting in Australia. The review applicant has not submitted any evidence demonstrating her ability to provide the necessary assistance to the visa applicant.
The visa applicant has not submitted financial statements in support of her application demonstrating her ability to support herself while in Australia.
The visa applicant claims she is employed as a telephone operator and office assistant with an export and import company. A letter from her employer has been submitted as evidence.
The level of personal, financial, employment and other commitments which may induce the visa applicant to return
The visa applicant is 25 years of age and single. As previously stated she is employed as a telephone operator and office assistant. She has her mother and two siblings in Cambodia. The review applicant is the only family member in Australia.
Circumstances which may induce the visa applicant not to return
The visa applicant's claim in relation to her employment and remuneration has been corroborated by independent evidence. The primary decision-maker has also stated that the supporting documentation submitted by the visa applicant matches in detail similar documentation from other non-credible applicants.
The credibility of the visa applicant in terms of character and conduct
Information disclosed in the visa application or otherwise obtained which indicates a reasonable likelihood that the applicant will not abide by visa conditions
The history of compliance with or breach of immigration law by the visa applicant
The history of dealings with the Department of any person or persons in Australia or usually resident in Australia who supports or support the visit of the visa applicant
11. The circumstances do not appear to have changed from the time of the visa application.
12. A decision on the review would appear to involve reaching findings on one or more of the matters set out earlier. If the Tribunal makes an adverse finding on one matter, the appropriate course would be to affirm the decision under review. If the Tribunal makes findings favourable to the review applicant in relation to each matter, the appropriate course would be to remit the application for the visa to Immigration for reconsideration.
13. A hearing in this review was held on 14/06/2000. The hearing was attended by the review applicant, Mrs. Thary Sam who is the sister of the visa applicant.
14. The review applicant testified to the effect that she wished her sister to visit Australia to be with her and to help with the care of her children. Asked what would induce her sister to return to Cambodia she replied that her sister needs to return in order to look after their mother, attend to the house and be with her brothers. The review applicant stated that according to Cambodian custom daughters have a duty to care for their mothers.
15. The Tribunal explained to the review applicant the nature and significance of condition 8503. She was of the opinion that her sister would have no objection to imposition of such a condition.
* The visa applicant is seeking to visit Australia for the purpose of visiting Mrs.Thary Sam, an Australian citizen or Australian permanent resident, who is a sister of the visa applicant
* The visa applicant has adequate funds, or access to adequate funds, for personal support during the visit. These funds to be provided by the husband of the review applicant.
* The period of stay in Australia proposed in the application does not exceed 3 months
* The Tribunal is satisfied that the expressed intention of the visa applicant to visit Australia is genuine
* Having regard to the visa applicant's circumstances in the visa applicant's country of usual residence, there is very little likelihood that the visa applicant will remain after the expiry of any period during which the visa applicant might be authorised to remain after entry
17. The Tribunal remits the application made by the visa applicant for a Short Stay (Visitor) (Class TR) visa to Immigration, for reconsideration with the direction that the visa applicant is to be taken to have met the following criteria:
* paragraphs 676.221(2)(a), (b) and (c) of Schedule 2
* clause 4011 of Schedule 4, one of the requirements of paragraph 676.221(2)(e) of Schedule 2
The Tribunal is of the view that if the applicant is granted a tourist visa it should be subject to condition 8503.
Remitted to Immigration for reconsideration with direction that visa applicant be taken to have met clauses 676.211, 676.212, paragraphs 676.221(2)(a), (b) and (c), and clause 4011 of Schedule 4, subject to condition 8503.