1516524 (Migration)

[2016] AATA 4295

1516524 (Migration) [2016] AATA 4295 (23 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Kim Phuc NGUYEN

VISA APPLICANT:  Mr Minh Tri NGUYEN

CASE NUMBER:  1516524

DIBP REFERENCE(S):  BCC2015/3012250

MEMBER:Linda Symons

DATE:23 August 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 23 August 2016 at 11:33am

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 November 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 to the Department of Immigration and Border Protection (the Department) for the visa on 14 October 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 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. 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 visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 1 December 2015, an application was made to the Tribunal for review of that decision.

5. The review applicant appeared before the Tribunal on 11 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa 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 his sister and other family members. This is a purpose for which a visa in the Sponsored Family stream may be granted.

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.

11. There is no evidence before the Tribunal that the visa applicant has previously visited Australia.

12. 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:

    ·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.

13. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for his visit to Australia. The review applicant gave evidence that she will pay for the visa applicant’s airfare and living expenses in Australia and that he will live with her whilst he is in Australia. She stated that he is planning to bring $9,000.00 with him to buy gifts for people in Vietnam and souvenirs.

14. The review applicant gave evidence that she has been employed as a nail technician for the last 8 months and earns approximately $400.00 gross per week. She stated that her husband has been employed as a process worker in a factory for over 10 years and earns over $800.00 gross per week. She stated that they own a car and have about $20,000.00 in savings. She stated that they have no children. She stated that she and her husband live in a room in a house owned by her step sister. She stated that her step sister, her husband, her two children and she and her husband live in the house.

15. The review applicant gave evidence that the visa applicant has been employed as a Project Manager for a construction company in southern Vietnam for over 3 years. She stated that he does not own any property and has no debts. She stated that he has savings of over $9,000.00. She stated that he has no intention of working, studying or undertaking any training in Australia.

16. The visa applicant gave evidence that he is currently employed as a Project Manager of a construction company in southern Vietnam and has done this job for over 3 years. He stated that prior to that he worked as an “Operation Worker” at a glass company for 6 years. When asked how he will pay for his airfare and living expenses in Australia, he responded that his bank account shows that he has savings of approximately $9,000.00 and the review applicant will also provide him with financial assistance. He stated that he plans to bring around $2,000.00 with him.

17. When the Tribunal asked the visa applicant what assets he owned, he responded that he does not trust banks and that is why he does not put money in the bank. He stated that he has some gold. When asked how he was able to provide a bank statement if he does not put money in the bank, he responded that when the Department required evidence he opened a bank account and deposited money in the bank for that purpose. He stated that he is sometimes paid in cash and sometimes paid by cheque. He stated that he has no debts. He stated that he has no intention of working, studying or undertaking any training in Australia. He stated that he has been working hard and is tired. He stated that he is coming to Australia to relax.

18. The Tribunal put to the review applicant the visa applicant’s evidence in relation to how he is paid and why he opened a bank account, pursuant to s.359AA of the Act, and noted that it had no evidence of whose money was deposited into the visa applicant’s bank account. The Tribunal also noted that this raised issues in relation to the visa applicant’s financial circumstances and whether they are as he claims. She responded that in Vietnam some people are paid in cash and some have a direct credit into their bank account. She stated that sometimes banks in Vietnam charge large fees. She stated that the visa applicant does not trust the banks so he does not deposit all his money in the bank. She stated that in Vietnam people buy valuable things like gold and diamonds because they think it is a safer way to keep their assets.

19. This evidence was reiterated in the submissions made by the review applicant’s migration agent.

20. In considering whether the visa applicant intends to comply with condition 8503, the Tribunal discussed with the review applicant and the visa applicant whether he intends getting married in Australia. The review applicant stated that he has no intention of doing so. The visa applicant stated that he already has a girlfriend in Vietnam. He stated that they are planning to get married next year.

21. In considering whether the visa applicant intends to comply with condition 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The review applicant gave evidence that the visa applicant is coming to Australia for the purpose of visiting relatives and sightseeing. She stated that he has been working for his current employer for over 3 years and has not had a chance to travel anywhere. She stated that they have a step mother and five half siblings in Australia. She stated that her mother is her father’s second wife. She stated that the visa applicant wants to come to Australia for 1 month.

22. The visa applicant gave evidence that his purpose in coming to Australia is to visit family and to go sightseeing in NSW. He stated that he wants to come to Australia for 1 month. He stated that he is entitled to 13 days leave a year and is able to accumulate his leave. He stated that he has not taken any leave in his current job and has been working 7 days a week. He stated that he has accumulated 39 days of leave. He stated that he applied for 3 months leave from his job and his employer has approved it in principle. He stated that as he has worked for 3 years he is entitled to 3 months leave without pay.

23. The Tribunal asked the visa applicant why he has applied for 3 months leave if he only wants to come to Australia for 1 month. He responded that he initially intended attending his half brother’s wedding in Australia and to spend a month in Australia and 2 months at home travelling locally. He stated that he has worked continuously for 3 years without a break, feels exhausted and needs time to relax. He stated that his financial situation allows him to do that.

24. The Tribunal put to the review applicant the visa applicant’s evidence in relation to his leave entitlements, how much leave he has applied for and what he intends doing with his leave, pursuant to s.359AA of the Act, and noted its concerns in relation to his intentions. She responded that the visa applicant was thinking of accumulating his leave and having a trip. She stated that he is entitled to 3 months leave and it is up to him what he does with it. She stated that he will be on paid leave for 39 days and the rest of the time will be leave without pay.

25. The Tribunal discussed the incentives for the visa applicant to return to Vietnam and the incentives for him to remain in Australia. The review applicant gave evidence that the incentives for the visa applicant to return to Vietnam are that he has a stable job and income, his parents live in Vietnam and he has a girlfriend of 4 years whom he plans to marry next year. The visa applicant gave evidence that he was born in Vietnam and has lived there all his life. He stated that his parents and two younger siblings live in Vietnam. He stated that he has a stable job and his salary is higher than the average person in Vietnam. He stated that his salary allows him to live a comfortable life in Vietnam. He stated that he has a girlfriend of 4 years whom he plans to marry next year. He stated that he is planning to open his own business. He stated that life in Australia is difficult because of the language difficulties. When asked what would happen if he came here and changed his mind, he responded that he loves his job and is comfortable in Vietnam. He stated that he is used to the Vietnamese way of life and has lots of relatives in Vietnam. He stated that he has no reason to change his mind.

26. The Tribunal has had regard to the written submissions dated 9 October 2015, 25 July 2016 and 8 August 2016 made by the review applicant’s migration agent and the supporting documents provided to the Department and the Tribunal.

27. Having considered all the evidence, the Tribunal accepts that the visa applicant’s parents, two of his siblings and his girlfriend live in Vietnam and that this would provide an incentive for him to return to Vietnam at the end of his holiday in Australia. The Tribunal also accepts that he has a sister and five half siblings who live in Australia. The Tribunal is of the view that this may provide an incentive for him to remain in Australia at the end of his permitted stay. The Tribunal accepts that the visa applicant is employed in the construction industry and has been with his current employer for over 3 years. Whilst this may provide an incentive for him to return to Vietnam, the Tribunal is of the view that his ability to earn a much higher income in the construction industry in Australia (irrespective of his English language skills) may provide an incentive for him to remain in Australia at the end of his permitted stay.

28. The fact that the visa applicant has applied for 3 months leave from his employer, much of which will be leave without pay is of concern to the Tribunal as it is inconsistent with his evidence and raises issues in relation to his intentions. The Tribunal did not find the reasons given for by the visa applicant taking 3 months leave to be convincing. The Tribunal is of the view that if he plans to get married next year, as claimed, he would be saving his income, preserving his savings and accruing his leave for the purpose of his wedding. Whilst the Tribunal accepts that he may be tired and needing to rest if he has been working 7 days a week for the last 3 years, the Tribunal is of the view that he would be able to do so by taking his paid leave. The Tribunal is of the view that if he wishes to visit Australia for a month, as claimed, and spend some time resting or travelling locally he would be able to do so with his 39 days of accrued paid leave.   

29. On the evidence before it, the Tribunal is not satisfied that the visa applicant only intends visiting Australia for one month. The Tribunal is not satisfied that he will comply with conditions 8101 and 8531 if granted the visa. The Tribunal is not satisfied that the incentives for the visa applicant to return to Vietnam outweigh the incentives for him to remain in Australia.  

30. The Tribunal has considered whether the lodging of a security bond will provide an incentive for the visa applicant to comply with the conditions of the visa and is not satisfied that it will.

    DECISION

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

    Linda Symons
    Member