1514204 (Migration)

[2016] AATA 3894

1514204 (Migration) [2016] AATA 3894 (20 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thao Tam Trang

VISA APPLICANT:  Mr Van Tuan Doan

CASE NUMBER:  1514204

DIBP REFERENCE(S):  01017609

MEMBER:Rachel Homan

DATE:20 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 20 May 2016 at 9:36am

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 8 October 2015 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 30 September 2015. 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 review applicant appeared before the Tribunal on 4 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Vietnam. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

   Visa application

8. According to information provided in his visa application, the visa applicant is a 30-year-old Vietnamese national presently residing in Nam Dinh, Vietnam. The visa applicant indicated that he wished to visit Australia between November 2015 and January 2016 in order to spend time with his wife, the review applicant, who is living and working in Australia. The visa applicant stated that, since they met, the review applicant had travelled to Vietnam many times to visit him and his family but he was yet to visit her and her family in Australia. The visa applicant stated that the parties married in 2014 and had spent a long time apart.

9. The visa applicant identified the review applicant and a sister as his relatives in Australia. The visa applicant’s parents, two other sisters and a brother reside in Vietnam. The visa applicant stated that he was the owner of an aquaculture business and had a savings account with a balance of US$8000. The visa applicant stated that he would spend approximately $3000 for the airfare and his costs of living during his time in Australia. The visa applicant stated that he would reside at his parents-in-law’s home together with his wife during the period of his stay.

10. The visa applicant declared that he had applied twice for partner visas to reunite with his wife in Australia but they had been refused. The visa applicant stated that he was awaiting review of a decision to refuse to grant him a partner visa.

11. Submitted with visa application was a letter of support from the review applicant. The review applicant stated that she wished to invite her husband to come to Australia to visit her family. The review applicant stated that the parties held a wedding celebration on 13 May 2013 and registered their marriage on 22 July 2014. The review applicant stated that she had twice submitted applications for the visa applicant to travel to Australia but both had been refused. The review applicant stated that she was busy with study and work and was unable to arrange time to visit her husband in Vietnam. The review applicant stated that it was her expectation that her husband would come to Australia for a period of two months and return to Vietnam when his visa expires.

12. Submitted with the visa application were various untranslated documents, including a marriage registration certificate; a letter from ANZ Bank, dated 17 September 2015, certifying that the visa applicant holds a personal account with a balance of AU$10,000; four photographs of the parties together, including one apparently taken on the day of their wedding celebration; untranslated Internet messaging records; evidence of the review applicant’s employment; and a letter from this Tribunal acknowledging receipt of an application for review of a decision to refuse to grant the visa applicant a partner visa on 12 August 2015.

    Review application

13. At the time she applied for review, the review applicant submitted to the Tribunal a copy of the delegate’s decision record. On 3 May 2016, the Tribunal received written statements from both the visa applicant and review applicant.

14. In his statement, the visa applicant indicated that he had previously visited Australia for one month in 2008 and returned to Vietnam before his visa expired.  The visa applicant confirmed that he was still awaiting review of a decision to refuse to grant him a partner visa and that he and the review applicant really missed each other. The visa applicant stated that they had been very disappointed when they received the refusal letter and he now wished to spend more time with the review applicant. The visa applicant stated that he would not want to do anything wrong which would jeopardise his application for a partner visa and would therefore abide by any conditions attached to his visa.

15. The visa applicant stated that he was living with his parents and owned an aquaculture farm from which he received an income of 800 million dongs per year. During his visit to Australia, the visa applicant’s father and three workers would manage the visa applicant’s work on his behalf.

16. The review applicant’s statutory declaration provided information about her living arrangements, employment and study commitments and contained an undertaking to ensure that the visa applicant would return to Vietnam within the time permitted by the visa and abide by his visa conditions.

    Tribunal hearing

17. The visa applicant and review applicant gave oral evidence at hearing which was mutually consistent and broadly consistent with the documentary evidence before the Tribunal.

18. Both parties indicated that the visa applicant wished to visit Australia in order to spend time with the review applicant whilst they awaited the outcome of the application to review the decision to refuse to grant him a partner visa. The review applicant gave evidence that she had flown to Vietnam on four or five occasions to spend time with the visa applicant but was now busy with her work and study. The review applicant told the Tribunal that she was studying a Masters of Social Science and held a permanent part-time position at the casino. It was now more difficult for the review applicant to obtain annual leave and there were certain periods in which she could not obtain leave at all.

19. The review applicant provided the Tribunal with a brief account of the commencement and development of her relationship with the visa applicant. The review applicant told the Tribunal that the parties met in 2008 at the visa applicant’s sister’s home. From there, they continued to communicate by email. The review applicant was having a difficult time in her personal life and the visa applicant was able to provide her with support when she needed it.

20. The review applicant told the Tribunal that she had spent time in North Vietnam with the visa applicant. When their application for a prospective spouse visa was refused they felt heartbroken. The review applicant had three days off work and so decided to fly to Vietnam and get married. The review applicant expressed the view that many of the inconsistencies identified in the decision to refuse to grant the visa applicant a partner visa arose due to interpreting errors during their interviews.

21. The parties both confirmed that the visa applicant complied with the conditions attached to his previous visitor visa and had returned to Vietnam within the visa period. Both parties told the Tribunal that the visa applicant had not otherwise travelled outside of Vietnam.

22. The review applicant gave evidence that the visa applicant resides in a home with his parents, grandmother, brother, sister-in-law and nieces. The visa applicant also has two sisters living in Hanoi who are married with young children. The review applicant told the Tribunal that the visa applicant occasionally stays overnight at the dams where he runs his aquaculture business.

23. The review applicant told the Tribunal that the visa applicant took over the aquaculture business from his father and was now the sole owner of the business. The business consisted of two dams of 10 ha and 8 ha in size, in which the visa applicant grows prawns and pipis. The visa applicant told the Tribunal that his net annual income from this business is 800 million dongs (approximately AUD$49,000).

24. The Tribunal asked both parties about the deposit of AU$10,000 in an ANZ Bank account. The review applicant was unable to provide any significant detail about the source of funds or the purpose of that deposit. The visa applicant told the Tribunal that the source of these funds was his business income. The visa applicant told the Tribunal that he did not have a business bank account as his business dealt mainly in cash. The visa applicant stated that he had made the $10,000 deposit to cover his expenses for his visit to Australia. The visa applicant told the Tribunal that he held a second bank account with Agri Bank with a balance of approximately 300 million dong and also invested his income from his aquaculture business in gold. The Tribunal noted that the visa applicant had not previously mentioned or submitted any evidence of this account and agreed to wait until 19 May 2016 to receive any additional evidence of the visa applicant’s financial position.

25. The parties both told the Tribunal that the visa applicant wished to visit Australia for a period of approximately 2 months. The Tribunal asked both parties what the visa applicant would do with his time whilst the review applicant was at work or studying. The review applicant told the Tribunal that the visa applicant would spend some time with his sister who has two young children. The visa applicant told the Tribunal that he would stay home and find out more about Australia and Australian culture; visit his sister; and run errands like going to the supermarket.

26. The Tribunal put to both applicants its concern that the visa applicant appeared to have an intention of residing permanently in Australia given his application for a permanent partner visa. The Tribunal also noted that the visa applicant had sought a reasonably lengthy stay in Australia and that the review applicant would be working and studying during at least part of that stay. In these circumstances, the Tribunal had some concern that the visa applicant may seek work whilst in Australia and that he may seek out alternative avenues of remaining permanently in Australia once here.

27. The review applicant responded to the Tribunal’s concerns, stating that the visa applicant has a higher income than her own from his business in Vietnam. The visa applicant would be unwilling to jeopardise his permanent partner visa application and they wished to do everything ‘by the book’. The visa applicant also told the Tribunal that he is a law abiding citizen of Vietnam and would also abide by Australia’s laws. The visa applicant also stated that he would not wish to jeopardise his partner visa application and his family’s future happiness.

28. The review applicant told the Tribunal that the visa applicant’s main incentives for returning to Vietnam included his business, the presence of the majority of his siblings and friends in Vietnam, as well as his intention not to jeopardise his partner visa application.

29. Both parties told the Tribunal that the visa applicant was willing to pay a bond or security. The visa applicant told the Tribunal that he had approximately 1 billion dong available to him to use for this purpose.

    Post-hearing submissions

30. On 10 May 2016, the Tribunal received a translated Certificate of Account Balance from the Vietnam Bank for Agriculture and Rural Development in the visa applicant’s name showing a balance at 9 May 2016 of VND 1,020,034,900.

    Findings

31. The Tribunal has carefully considered the oral and documentary evidence before it but remains unsatisfied that the visa applicant genuinely intends to remain temporarily in Australia for the purposes of a family visit.

32. The Tribunal accepts that the visa applicant previously travelled to Australia as the holder of a visitor visa and appears to have complied with the conditions attached to that visa and returned to Vietnam before his visa expired. The Tribunal has placed weight on this evidence in considering whether the visa applicant intends to comply with the conditions attached to a visitor visa granted to him now.

33. The visa applicant’s current circumstances are, however, significantly different to those at the time of his 2008 visit to Australia. The parties claim to have commenced a relationship following the visa applicant’s departure from Australia and in the intervening period have registered their marriage and made two applications for partner visas. As put to the applicants at the Tribunal hearing, the visa applicant’s partner visa applications indicate that he has a strong desire to reside permanently in Australia.

34. The parties both argued that the visa applicant is a law abiding person who would not wish to jeopardise his permanent partner visa application by failing to comply with the conditions attached to his visitor visa. The Tribunal has taken this submission and the evidence that the parties are willing to pay a substantial bond into account but remains troubled by other aspects of the evidence.

35. The parties told the Tribunal that the visa applicant wished to visit Australia for a period of two months. The review applicant explained that the visa applicant had made the present application because she was too busy with her work and study to travel to Vietnam and that it would be difficult for her to obtain leave from her employer. The review applicant’s evidence suggested that she would continue to work and study during the period of the visa applicant’s visit. In this context, the Tribunal asked the parties how the visa applicant intended to occupy himself during what was a relatively lengthy stay. The Tribunal has considered their responses, as described above, but given the visa applicant’s intention, at least in the long-term, is to live permanently in Australia, the Tribunal remains concerned that the visa applicant would have a strong incentive to look for work, in breach of condition 8101. When the Tribunal discussed its concerns in this regard with the review applicant at hearing, she claimed that the visa applicant is in receipt of a relatively high income from his aquaculture business and would not need to work during his visit.

36. The Tribunal has noted the oral and written evidence presented to the Department and the Tribunal in relation to the visa applicant’s business and income. Whilst the oral evidence on this issue was broadly consistent, the Tribunal does not have before it any documentary evidence of the visa applicant’s business activities apart from an untranslated document submitted with the visa application. The visa applicant claims to be in receipt of a very significant (by local standards) income from this business and has now provided certificates of deposit which suggest that he has substantial funds available to him to cover a stay in Australia. The Tribunal is not, however, satisfied on the evidence before it that the visa applicant genuinely has access to those funds or that they were sourced from the visa applicant’s claimed aquaculture business.

37. Even if the Tribunal were to accept that the visa applicant owns and operates a significant aquaculture business, the Tribunal is not satisfied that this circumstance would provide the visa applicant with a strong incentive to return to Vietnam, given the visa applicant’s ultimate intention is to reside permanently in Australia. The evidence before the Tribunal is that the business would continue to be operated whilst the visa applicant is in Australia by his father and staff.

38. The Tribunal is prepared to accept on the evidence before it that the visa applicant resides in a household with his parents and relatives and has friendships, other relatives and social connections in Vietnam. The Tribunal accepts that these connections would provide him with some incentive to return to Vietnam at the end of a visit. However, the evidence also suggests that the visa applicant has family ties to Australia including the review applicant and a sister and has a desire to live permanently in Australia despite his ties to Vietnam.

39. Having weighed the evidence, 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

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

    Rachel Homan
    Member