Bui (Migration)

[2018] AATA 3408

Bui (Migration) [2018] AATA 3408 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Hong Bui

VISA APPLICANT:  Mr Van Giang Bui

CASE NUMBER:  1716567

DIBP REFERENCE(S):  bcc2017/2103789

MEMBER:Linda Symons

DATE:17 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 17 July 2018 at 3:25pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Whether the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted – Significant business ties in home country – Significant family ties in home country – Cogent and consistent reasons for visit – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, Conditions 8101, 8201, 8503, 8531

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 6 July 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 14 June 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 because he was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 31 July 2017, the review applicant, who is the daughter of the visa applicant, applied to the Tribunal for a review of that decision.

5. The review applicant appeared before the Tribunal on 19 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, the review applicant’s husband, Huynh Huy Diep, the visa applicant’s sister, Thi Uyen Bui, and her daughter, Thi Nhan Bui. 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 who attended the hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 a family visit. This is a purpose for which a visa in the Tourist 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. There is no evidence before the Tribunal to indicate that the visa applicant has travelled to Australia previously.

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. 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.

12. 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 is currently not in paid employment. She stated that her husband works as a truck driver. She stated that they have a 3 year old child. She stated that they live in a three bedroom villa that they own. She stated that they have savings of approximately $50,000.00 and a mortgage of $250,000.00. She stated that she and her husband will pay for the visa applicant’s airfare and living expenses in Australia and will provide him with accommodation in Australia.

13. The review applicant gave evidence that the visa applicant had been a farmer in the past but due to industrialisation he stopped farming full time and set up his own business. She stated that he then retired from that business 2 years ago and now runs a small business from home selling materials for the construction industry like bricks and sand. She stated that he also grows a few things around the house. She stated that her mother runs a grocery business from home. She stated that they own a house and have savings. She stated that they have no debts. She stated that the visa applicant has no intention of working, studying or undertaking any training in Australia.

14. The visa applicant gave evidence that he runs a business selling building supplies and also does some farming work. He stated that he owns a house, some land and a store. He stated that he has savings of 550 million Vietnamese dong and his wife has savings of 330 million Vietnamese dong. He stated that he has no debts. He stated that the review applicant and her husband will pay for his airfare and living expenses and will provide him with accommodation in Australia. He stated that he plans to bring between US$3,000.00 and US$5,000.00 in spending money. He stated that he has no intention of working, studying or undertaking any training in Australia.

15. The Tribunal has been provided with documentary evidence of the assets owned by the review applicant and the visa applicant.

16. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of his proposed stay in Australia. The review applicant gave evidence that the visa applicant would like to visit for between 1 and 2 months. She stated that she was unable to return to Vietnam for 9 years. She stated that she obtained permanent residence in Australia 2 years ago and has travelled to Vietnam with her child on three occasions over the last 2 years. She stated that she would like the visa applicant to see her life in Australia and to show him beautiful places in Australia so that he can experience it himself. She stated that she would like to take him travelling around Australia. She stated that she has her own car and is able to do so. When asked how he is able to take that amount of time off from his work, she responded that his business is small and he works flexible hours.

17. The visa applicant gave evidence that he would like to visit Australia for a little over a month. When asked how he is able to take that time off his work, he responded that he has a small business and his wife would be able to take care of his business in his absence. When asked what he planned to do in Australia, he responded that he would like to see the Opera House and see “government buildings” in Australia. He stated that in Vietnam it is not possible to go inside government buildings like Courts. He stated that in October 2017 he went on a tour of Singapore and Malaysia with his daughter who lives in England.  

18. The Tribunal discussed the incentives for the visa applicant to remain in Australia after the end of his permitted stay and the incentives for him to return to Vietnam. The review applicant gave evidence that the biggest incentive for him to return to Vietnam is that his family is there. She stated that his mother is elderly and her younger brother is only 13 years old. She stated that he also has his business. When asked what would happen if he came to Australia, changed his mind and decided that he wanted to stay here, she responded that she would talk to him and not allow him to do that. She stated that he loves his family and is a responsible person. She stated that he is responsible for his mother and will return to Vietnam to take care of her.   

19. The visa applicant gave evidence that his incentives to return to Vietnam are his family and his business. He stated that his 95 year old mother lives with him and he and his wife take care of her. He stated that his niece lives close by and will move in and help his wife to take care of his mother in his absence. He stated that his youngest child is only 13 years old. He stated that he has sisters who live in Australia and they have told him that Australia is a beautiful country. He stated that they had previously sponsored his mother to visit Australia.  He stated that he just wants to visit the review applicant, his grandchild and his sisters and then return to his family in Vietnam.

20. The Tribunal discussed with the review applicant whether the visa applicant had any problems in Vietnam because of his religion. She stated that both her parents are Roman Catholics and neither of them have had any problems in Vietnam because of their religion. 

21. The Tribunal has considered the evidence given by the other witnesses. The Department of Home Affairs (the Department) was provided with a Statutory Declaration dated 12 May 2017 from the review applicant’s husband, Huynh Huy Diep. In it, he stated that he supports the visa applicant’s application and confirmed that he and the review applicant will provide him with accommodation, transport and financial support in Australia and will show him around places of interest in Australia. He reiterated this evidence during the hearing.

22. The visa applicant’s sister, Thi Uyen Bui, gave evidence that she lives in Vietnam and is retired. She stated that she has three children and a younger sister who are permanent residents in Australia. She stated that she was granted a Visitor visa and was able to visit her family in Australia. She stated that she visited for 10 months, returned to Vietnam and then came back to Australia. She stated that the visa applicant is in a more secure financial situation than she is and she could not understand why he had been refused a visa. She stated that, like her, he just wants to visit his daughter and grandchild and see how they live. She stated that her grandmother is over 80 years old and the visa applicant is responsible for her. She stated that he also has a wife and child in Vietnam.

23. The Tribunal has considered the submissions made by the review applicant’s migration agent.

24. Having considered all the evidence, the Tribunal finds that the review applicant and the visa applicant are credible witnesses. The Tribunal accepts that the presence of the visa applicant’s elderly mother, wife and child and his business in Vietnam provide strong incentives for him to return to Vietnam at the end of his holiday in Australia. The Tribunal accepts that the incentives for him to return to Vietnam outweigh the incentives for him to remain in Australia after the end of his permitted stay. The Tribunal accepts that his expressed intention to only visit Australia is genuine. The Tribunal accepts that he will comply with the conditions of his Visitor visa.

25. For the above reasons the Tribunal is 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 met.

    DECISION

26. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Linda Symons
    Member