1500037 (Migration)

[2015] AATA 3081

1500037 (Migration) [2015] AATA 3081 (14 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Ngoc Duc Nguyen

VISA APPLICANT:  Ms Thi Ngoc Hieu Nguyen

CASE NUMBER:  1500037

DIBP REFERENCE(S):  02015664

MEMBER:Suzanne Carlton

DATE:14 July 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 14 July 2015 at 1:10pm

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 2 December 2014 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 7 November 2014. 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 because she was not satisfied that the applicant genuinely intended to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 14 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. Her agent attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her sister, the review applicant. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. 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)).

11. 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.600.611(2)):

    ·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.

12. In refusing the visa, the delegate stated:

    I give significant weight to the adverse immigration record of a member of the applicant’s immediate family.  Specific detail cannot be included in this decision record due to privacy restrictions.

13. The review applicant told the Tribunal about the composition of her family.  The Tribunal also hard regard to a document provided by the visa applicant through the review applicant to the Tribunal, detailing the family composition.

14. The document failed to include the youngest brother of the siblings.  The document also provided a column headed “Previously applied for a visa to Aus.?”  In this column, the visa applicant had recorded “no” next to all siblings, except for a sister that was born in 1969.  With respect to that sister, the column was left blank.

15. During the hearing, the review applicant advised that both her sister born in 1961 and her sister born in 1969 had previously applied for and were granted visas to come to Australia.  The review applicant acknowledged sponsoring both.

16. The Tribunal asked if the both sisters had previously returned to Vietnam within the time provided by their visitor visas.  The review applicant said yes.

17. The Tribunal asked if the both sisters had previously complied with their visitor visa conditions.  The review applicant said yes.

18. During the hearing, the Tribunal put to the review applicant, under s 359AA of the Act, that her sister born in 1969 had been caught working in contravention of her visa conditions, had her visa cancelled and granted a Bridging visa E prior to departing the country in 2008. The review applicant was barred from sponsoring anyone else for five years.

19. The review applicant responded that it had been a misunderstanding.  Her sister was not working but had followed someone onto a job site.  Her sister did not understand the conditions of her visa.

    FINDINGS AND REASONS

20. While I accept the sponsorship bar period has been served and the review applicant is thus again able to sponsor, I am not satisfied that she understands and is committed to ensuring that the applicant complies with the visa conditions to be imposed on this visa.  I note that a security bond had been imposed in relation to the cancelled visa in 2008.

21. Her response to the previous breach was to try to dismiss it or explain it away by saying that her sister had followed a friend to a work and had not really been working and that she did not understand the visa conditions. 

22. Further, her willingness to mislead the Tribunal as to the previous breach reflects adversely on her credibility.

23. The document provided by the visa applicant her application and provided by the review applicant to the Tribunal advising that no other family members had applied for visas to Australia was also misleading.  I consider that reflects adversely on the credibility of the visa applicant.

24. Because of the willingness of the applicants to mislead the Department and the Tribunal, coupled with a seeming failure of the sponsor to accept responsibility for her sister’s breach of visa conditions in 2008, the Tribunal does not consider the applicants to be credible or reliable.

25. For the reasons set out above, 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

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

    Suzanne Carlton
    Member