Dang (Migration)

[2021] AATA 3870

Dang (Migration) [2021] AATA 3870 (7 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thuy Cam Dang

VISA APPLICANT:  Dr Lap Thanh Dang

CASE NUMBER:  1933696

HOME AFFAIRS REFERENCE(S):          CLD2019/88593593

MEMBER:Stephen Witts

DATE:7 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 07 October 2021 at 12:38pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – overstay 20 years ago not declared – implausible reasons for overstay and non-declaration – incentives to remain or return – two children and their families in Australia, one young adult child in home country – semi-retired with own house and other property and funds – application for contributory parent visa in progress – other compliant travel by applicant and other family members – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 Home Affairs on 15 November 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 10 October 2019. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different 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 (Cth) (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 the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

5. The review applicant, the visa applicant’s daughter, appeared before the Tribunal on 7 October 2021 to give evidence and present arguments.

6. The Tribunal notes that this matter was heard in conjunction with case number 1933701 as the review applicant in this matter is the same, and that she is the daughter of the visa applicant in both matters. As such, it is also noted by the Tribunal that the visa applicants in both matters are partners and the parents of the review applicant in both matters.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

8. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

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

12. 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)). At hearing the Tribunal had a discussion with a visa applicant regarding his previous adherence to substantive visa conditions. At the hearing the Tribunal had a discussion with the visa applicant and he stated, as outlined in submissions detailed below, that he did overstay his visitor visa for almost 2 years in 2001 and as such there was a breach of substantive visa conditions.

13. The Tribunal must also consider if appropriate 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):

    ·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.

14. According to the delegate’s decision record dated 15 November 2019 provided to the Tribunal by the applicants the delegate was not satisfied that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

15. According to the delegate it considered the applicant’s application in support of his claim to be genuine visitor, that the applicant had provided evidence that there were funds and properties in the visa applicant’s home country of Vietnam, but also considered that he travelled to Australia in March 2001 on a visa permitting a temporary stay and did not depart within the visa validity. According to the delegate the applicant was given an opportunity to comment on this adverse information which he did not provide on his application form and that the applicant did acknowledged that he overstayed his visa but stated that it was provided by an agent who was not aware of his immigration history. According to the delegate it considered this and made a finding that the applicant would not be a genuine temporary visitor.

16. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing. In particular the Tribunal has considered a submission by the applicant’s representative dated 30 September 2021 in regard to both linked matters as noted above stating that the visa applicant in this matter, Mr Dang, did confirm when interviewed that he overstayed his visa in 2001 but that his agent in Vietnam was not aware that he had overstayed and therefore did not declare it in the visitor application form. It was also stated that he and his family members in Australia were of the opinion that after returning to his home country and after a three-year period the breach would not affect any future visa applications of travel to Australia and therefore did not need to mention it. It was stated by the applicant’s agent that he was fully aware that he must always declare any previous refusals and that it was not declared at the time. It was stated that it was an error and that the visa applicant did not hide that he had overstayed his visa.

17. It was also stated that the visa applicant’s personal circumstances and financial circumstances in Vietnam are strong. It was stated that the family in Australia include his two daughters and their husbands and grandchildren. It was also asserted that the delegate would have been aware that the visa applicant had at that time an application for a contributory parent visa subclass 143 which is an application for a permanent visa. It was stated that these applicants in these matters would not jeopardise the outcome of this visa application by overstaying in Australia on a visitor visa. It was further stated that the visa applicant when travelling here in 2001 received advice from migration agents that he could apply for a protection visa but that he did in fact return to Vietnam in 2007.

18. It was also stated that in the case of the visa applicant’s wife that her circumstances demonstrate that she had sufficient funds to cover her time in Australia and that the Department has approved previous visitor visas for her in 2005 and 2008 and that she abided by these visa conditions.

19. It was also noted that various members of the family have visited Australia in the past 10 years. It was also stated that the visa applicants in these linked matters have both stopped work and are semi-retired. It was stated that they are quite wealthy and own a large home part of which is leased out and that they also own other property where fruit trees are grown. It was also stated that they also have a son who was a student and that he is dependent on his parents and is also part of an application as stated above for a contributory parent visa. It was also stated that Mr Dang previously travelled to Australia as a visitor in 1997 and that his wife has travelled to Australia on three occasions. It was also stated that they have travelled to other Asian countries together including Thailand, Korea, and that Mr Dang has also travelled to Hong Kong and Malaysia.

20. It was further stated that they have three children in total and that two daughters live in Australia and that they are both married and had two children each.

21. It was stated that Mr Dang did do the wrong thing by overstaying and that they both applied to visit Australia in 2019 as visitors as one of their daughters had a child in 2019. It was also asserted that it is “written in policy” that applicants with such applications pending may apply also for visitor visas for longer periods than normal.

22. At the hearing the Tribunal had a discussion with the applicants regarding their application.

23. The review applicant stated that he wanted her parents to visit her and her sister and their families in Australia and that her parents have never met their two-year-old nephew. She stated that her parents will go home. She further stated that she first came to Australia in 2000 and became an Australian citizen in 2009 or 2010 and that she has two children aged 13 and 11 years. She stated that her sister came to Australia in 2008 and became an Australian citizen in 2015 or 2016 and she has two children aged 4 and 2. She stated that she has a brother back in Vietnam who is 22 years old and is currently a student.

24. The visa applicant stated that he wanted to apologise for his wrongful act and that he wanted to visit his children and grandchildren and his siblings in Australia and that he would return home.

25. The visa applicant’s wife stated that she would like to apologise for her husband’s overstaying for more than two years and that the agent only asked her about what had happened recently at that time. She stated that she wants to come to Australia to visit her children, her grandchildren and her husband’s brother and sisters. She stated that she knew that they had made a mistake but that they will return to Vietnam after their visit. She stated that they did not want to put at risk their contributory parent visa application.

26. The Tribunal has considered the evidence provided by the applicants in these linked matters very carefully and is concerned that the applicants have not provided evidence that the Tribunal found credible as to the incentives they may have to return to their home country. The Tribunal notes that Mr Dang did overstay his visitor visa previously in the past for a relatively significant amount of time and after careful consideration the Tribunal finds that this lends weight to the contention that the applicants may indeed seek to overstay their visitor visa on this occasion. The Tribunal has considered the submissions by the applicants as to the reasons why Mr Dang breached his previous visa conditions including advice taken from migration agents and does not find the explanations provided as plausible or credible.

27. The Tribunal also notes that most of the applicants’ direct family are now here in Australia including their two daughters who are both married and have two children each. The Tribunal does note that they do have one son back in their home country, but it also notes that he is now 22 years old and no longer dependent family member. The Tribunal finds after careful consideration that the applicants in this linked matter do lack an incentive to return to their home country once here in Australia.

28. Further, the Tribunal notes that the applicants are by their own submission retired or semi-retired and therefore also lack an incentive to return home in that they have no jobs or employment that must return to. The Tribunal notes that the applicants have stated that they have some assets and property back in their home country but notes that such assets can be sold or leased out on a long-term basis and therefore are not an encouragement to return home in this case. The Tribunal finds that these matters lend weight to the contention that the visa applicants do not genuinely intend to stay in Australia temporarily for the purpose for which the visa is granted.

29. The Tribunal has also considered specifically the statements made by the applicants that they would not want to put at risk their contributory parent visa application which has now been pending for four years and that therefore on that basis they would definitely return home prior to the end of their visitor visa validity period. The Tribunal has considered this matter carefully and does not find the evidence provided in this matter credible. The Tribunal notes that Mr Dang overstayed his visa for a considerable period of time and then did not notify the Department appropriately in regard to that matter. The Tribunal finds that should the applicants be successful in coming to Australia as visitors that they do not genuinely intend to stay in Australia temporarily for the purpose for which the visa is granted.

30. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

31. For the above reasons 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

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

    Stephen Witts
    Member