Do (Migration)

[2023] AATA 1862

Do (Migration) [2023] AATA 1862 (13 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Jessica Tuyet Mai Do

VISA APPLICANT:  Ms Thi Ngoc Hiep Nguyen

CASE NUMBER:  2306622

HOME AFFAIRS REFERENCE(S):          BCC2023/2596014

MEMBER:Member Nathan Goetz

DATE:13 June 2023

PLACE OF DECISION:  Melbourne

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 13 June 2023 at 5:23pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – proposed visit Australia for a family graduation – previous compliant family visits – applicant’s son unlawfully resident in Australia – business in home country – willingness to provide a security bond – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.612

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicant a Visitor (Class FA) visa.

   BACKGROUND

2. The visa applicant is Ms Thi Ngoc Hiep Nguyen, a female citizen of Vietnam born in 1979 and presently located in that country.

3. On 30 April 2023 the visa applicant applied for the visa. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with several different streams. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The visa applicant seeks to satisfy the primary criteria in the Sponsored Family stream.

4. On 12 May 2023 the delegate refused to grant the visa applicant the visitor visa. The delegate was not satisfied that the visa applicant satisfied cl 600.211 of Schedule 2 to the Regulations.

5. The review applicant is Ms Jessica Tuyet Mai Do, a female citizen of Australia born in 1994. She is the visa applicant’s niece.

6. On 13 May 2023 the review applicant applied to the Tribunal for review of the decision.

7. On 8 June 2023 the Tribunal wrote to the review applicant under s 360(1) of the Act to invite the review applicant to appear at a Tribunal hearing scheduled for 13 June 2023 so she could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal indicated that it required the visa applicant to also appear at the Tribunal hearing so the Tribunal could ask her questions relevant to the review. The review applicant consented to the Tribunal hearing being held that day.

8. On 13 June 2023 the Tribunal hearing occurred via MS Teams. The Tribunal was satisfied that a Tribunal hearing conducted by audio-visual link was appropriate in all the circumstances. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   CRITERIA FOR THE VISITOR VISA

9. 600.211 

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  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; and

   (b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c)  any other relevant matter.

10. Relevant to the criteria, the conditions to which the Subclass visa 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In the visa application form declared on 30 April 2023, the visa applicant:

    ·     Detailed that she is currently located in Vietnam. She identified her legal status as a ‘visitor.’ The Tribunal is satisfied that the visa applicant is a citizen of that country and that her description of her legal status was in that country was made in error. The Tribunal is satisfied that the visa applicant was attempting to describe the proposed ‘legal status’ for her planned visit to Australia.

    ·     Identified that the purpose of the visa applicant’s visitor to Australia is a family visit. She was asked to detail any significant dates on which she needed to be in Australia. The visa applicant wrote that she was visiting Australia for her niece’s graduation 10 to 14 July 2023. The visa applicant proposed to enter Australia on more than one occasion. The longest period she wished to be in Australia was up to three months between 25 May 2023 and 30 July 2023.

    ·     Noted that the visa application was lodged as part of a group of visa applications. The other visa application was made by the visa applicant’s husband Mr Chi Hanh Tien, who was born in 1976 and a citizen of Vietnam. The visa applicant’s husband is her travelling companion to Australia. Department records show that the visa applicant’s husband was granted the visitor visa on 12 May 2023, which is valid until 12 November 2023, but he has not travelled to Australia on the visitor visa. Department records show that the visa applicant’s husband was in Australia on a visitor visa between 1 May 2006 and 28 July 2007, and again on 7 August 2007 and 8 October 2007. Each time, he departed prior to the expiration of his visitor visa.

    ·     Indicated that she did not have any members of her family unit not travelling to Australia who are not Australian citizens or Australian permanent residents. When the review applicant applied to the Tribunal for review of the decision, she indicated that she made a mistake in the ‘non-accompanying members of the family unit’ of the visitor visa application form. When the review application was lodged, the review applicant wrote that when completed the visa application form, and forgot to mention that her cousin, Mr Tien Hoang Khang, born 4 September 2009, who she indicated was the visa applicant’s youngest son) would not be going with her aunt and uncle to Australia. Department records do not show this person as ever entering Australia. The visa applicant provided the Tribunal with a copy of her Vietnamese household registration booklet with an accompanying English translation in support of the fact that she had two children.

    ·     Declared that she had family in Australia, namely a son named Mr Phu Long Tien, who was born in 1998. She was unsure of his Australian residency status. She declared the sponsor for the visitor visa to be her niece, who is the review applicant. Department records show that the visa applicant’s son arrived in Australia on 21 January 2016 holding a student visa which ceased and that a bridging visa held by him in connection with a student visa application which was refused on 21 April 2023, ceased on 26 May 2023, meaning that he is currently an unlawful non-citizen in Australia.

    ·     Agreed that she would not undertake a course of study in Australia, understood that if a no further stay condition was imposed on her visa per 8503, this would limit her ability to remain in Australia, agreed to leave Australia on or before the expiration of the period allowed on the visitor vis per 8531 and understood that the visitor visa would not permit her to work per 8101. She declared that she never had a visa to Australia, or any other country refused or cancelled. On 1 May 2023 the visa applicant submitted a form to the delegate to correct this answer to indicate that she had applied for a visitor visa to Australia previously through an agent and the visa was denied. She applied many years ago and did not remember the details.

    ·     Declared that she was self-employed in Vietnam. She manages a cloth and fibre shop and has done so since August 2013. Funding for her stay in Australia will be self-funded through her own funds, but the sponsor is also willing to provide funds during the stay. To support this claimed employment, and ability to fund her stay in Australia, the visa applicant provided a ‘Confirmation of Account Balance’ for the visa applicant’s Vietnamese bank account, which showed a balance equivalent to $21,000 USD, as well as a ‘Payment in Cash to State Budget’ showing that the visa applicant had paid tax in Vietnam for business rates, the Value Added Tax, and individual income tax.

12. At the Tribunal hearing, the review applicant, the visa applicant, and the review applicant’s mother gave oral evidence to the Tribunal. At the Tribunal hearing, the Tribunal was told the following:

    ·     The visa application form was prepared with the assistance of a migration agent in Vietnam on instruction of the review applicant’s mother. The review applicant was put down as the sponsor for this visa because her mother was already a sponsor of another family member, and the family were under the belief that there was a limit on the number of people you could sponsor for a visa.

    ·     The review applicant is prepared to pay a security of $20,000 to secure the grant of the visa. She is currently employed in the family business as well as studying. She currently attends university and will graduate in 2024/2025.

    ·     The review applicant is one of three children. She has a sister named Ms Jenny Do, who was born in 2001 and a brother named Mr Ricky Do, who was born in 2005. These siblings were not included in the visa application form because it was understood that ‘contacts in Australia’ meant contacts for the visa application. It is Ms Jenny Do’s graduation on 12 July with a Bachelor of Arts majoring in psychology and criminology from the University of Queensland that the visa applicant wishes to attend. The visa applicant and her husband also wish to visit Australia to sightsee as a reward for looking after the review applicant’s mother’s parents who recently died in Vietnam. The review applicant initially told the Tribunal that the visa applicant and her husband were coming to Australia to work, but later said that she misspoke, and this was a result of a misunderstanding of what her mother was telling her during the Tribunal hearing.

    ·     The visa applicant will not work during her time in Australia. She does not plan to do any study or training during her time in Australia, nor plan to lodge any visa application during her time in Australia. The visa applicant is not applying to come to Australia because she fears she will be harmed in Vietnam. She has never had any problems with the authorities in Vietnam, has never had any problems with money lenders or loan sharks in Vietnam, has not engaged in any political activities in Vietnam and has never expressed any political opinion against the Vietnamese Government or the Vietnamese Community Party.

    ·     There was no declaration in the visitor visa application of the fact that the visa applicant had previously applied for a visitor visa that was refused because the review applicant’s mother filled in the application form.

    ·     The visa applicant is married to the review applicant’s uncle/brother of the review applicant’s mother. The review applicant’s mother is one of seven children, who were identified as follows:

    oMr Tien Minh Thanh, born 28 June 1973, who is married to Ms Nguyen Thi My Linh, born 2 January 1979. This brother and his wife were sponsored for a visitor visa by the review applicant’s sister and are currently in Australia on that visa. A search of the Department records demonstrate that this brother has travelled in and out of Australia on a number of occasions on a visitor visa and there is nothing to suggest that he has not complied with conditions of any previous grant of visa.

    oMr Tien Cai Phat, born on 4 September 1976, who is married to Ms Le Thi Thu, born on 22 December 1971. This brother and his wife were sponsored for a visitor visa by the review applicant’s mother and are currently in Australia on that visa. The review applicant’s mother has never previously applied to sponsor a person to come to Australia for a visitor visa and had that person not comply with the visa conditions. A search of Department records demonstrate that this brother has travelled in and out of Australia on a number of occasions on a visitor visa and there is nothing to suggest that he has not complied with conditions of any previous grant of visa.

    oMr Tien Chai Hieu, born on 15 April 1975, who is married to Ms Nguyen Huong Truc Ha, born on 10 August 1979. They are currently in Vietnam. A search of Department records demonstrate that this brother has travelled in and out of Australia on a number of occasions on a visitor visa and there is nothing to suggest that he has not complied with conditions of any previous grant of visa.

    oMr Tien Minh Loc, born on 10 July 1972, who is married to Ms Luong Thi Truc Linh, born on 19 August 1976. They are currently in Vietnam. A search of Department records do not demonstrate that this brother had ever travelled to Australia.

    oMr Tien Minh Tuan, born on 17 April 1969, who is married to Nguyen Thi Than, born on 1 January 1973. They are currently in Vietnam, but the review applicant’s mother is in the process of having them apply for visitor visas to come to Australia. A search of Department records do not demonstrate that this brother had ever travelled to Australia.

    oMr Chi Hanh Tien, who is the visa applicant’s husband.

    ·     The review applicant does not have much contact with her cousin in Australia, but her mother and the visa applicant do. Both the review applicant’s mother and visa applicant indicated that they had spoken to this cousin recently and he indicated that he was in Australia on a student visa and was in a relationship with a view to applying for a partner visa. The review applicant expressed shock that her cousin was an unlawful non-citizen in Australia.

    FINDINGS AND REASONS

13. The issue in this case is whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

14. If the decision-maker is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, then the proper course is for the Tribunal to set aside the decision of the delegate and remit the visa application back to the delegate for reconsideration of the grant of the visa which a direction that the visa applicant satisfies the cl 602.211 of Schedule 2 to the Regulations.

15. If the decision-maker is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, then the proper course is for the Tribunal to affirm the decision.

16. For the following reasons, the Tribunal is satisfied that it should set aside the decision and remit the visa application back to the delegate for reconsideration of the grant of the visa with an appropriate direction.

    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)).

17. The evidence is that the visa applicant has never previously travelled to Australia. Therefore, there is no migration history to demonstrate that the applicant does, or does not, genuinely intend to stay in Australia temporarily for the purpose for which the visa is granted.

18. Given the absence of any Australian migration history, this consideration is irrelevant.

    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 600.612):

19. The visa applicant declared her intentions to the comply with the visa conditions identified in this decision record. The oral evidence provided by the visa applicant at the Tribunal hearing was consistent with the declaration.

20. The Tribunal became concerned by the review applicant telling the Tribunal that the visa applicant and her husband (who had already been granted the visa) intended to come to Australia to work.

21. However, the Tribunal is conscious of the fact that the review applicant is a 19-year-old girl, and that the Tribunal hearing was being conducted with her mother speaking to her in Vietnamese throughout the Tribunal hearing, as well as her sister also being present in the Tribunal hearing talking at her. The review applicant’s oral evidence was that the visa application was completed by a migration agent in Vietnam on instruction from the review applicant’s mother, and that she had little knowledge of the visa application and was nominated to be the sponsor of the visa because of the belief that her mother could not sponsor anyone else as she had already sponsored her brother and his wife.

22. The Tribunal is satisfied that the review applicant misspoke about the intentions of the visa applicant coming to Australia, and instead meant to convey (what her mother was telling her in Vietnamese) that the visa applicant was coming to Australia as a reward for the work in caring for the now deceased grandparents in Vietnam, which was described as hard time.

23. The Tribunal is satisfied that the visa applicant genuinely intends to comply with the conditions which would attach to the visa based on the visa applicant’s oral evidence and the absence of any evidence to the contrary.

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

24. At first blush, the Tribunal was concerned that the failure to list all of the visa applicant’s ‘contacts’ in Australia, which would have included the review applicant’s mother, and the review applicant’s siblings, was done to avoid it becoming apparent that a number of the family reside in Australia. This may have been done for several reasons, such as to suggest that a number of family in Australia may act as an incentive for the visa applicant to remain in this country rather than return to Vietnam, or to hide adverse migration history of those family members.

25. Similarly, the Tribunal was initially concerned at the start of the Tribunal hearing when the review applicant told the Tribunal she was two or so years away from graduation, because this appeared to be at odds with the claimed purpose for the visit to Australia as declared in the visa application form. This contradiction appeared to suggest that the visa application was not for the purposes claimed.

26. The Tribunal was also concerned about the failure to declare the presence of the visa applicant’s remaining son in Vietnam may have been done to avoid identifying that he had an adverse migration history, or that this son was fabricated to address a concern expressed in the delegate decision that the visa applicant, if granted the visitor visa, would have no family in Vietnam to return to, noting that the visa applicant’s husband had been granted a visitor visa to come to Australia.

27. The Tribunal was also concerned with the emergence of the fact that the review applicant’s mother had many siblings in Vietnam who had not been declared in the visa application form, and the emergence during the course of the Tribunal hearing, that there had been various people sponsoring members of the family to travel to Australia for a visit, with some of those family members already in Australia. The Tribunal was concerned that the family were migrating en masse to Australia and were not identifying family members in the visitor visa application to hide this.

1. Finally, the Tribunal was concerned by the fact that the visa applicant was coming to Australia when her son, who is in this country, is here as an unlawful non-citizen. The Tribunal was concerned that this may suggest that the visa applicant would come to Australia and like her son, remain in Australia outside her authorised period of stay.

2. However, after speaking with the review applicant, visa applicant and the review applicant’s mother, the Tribunal is satisfied that the visa applicant has not been served well by the migration agent in Vietnam, or by the review applicant’s mother’s best attempts to answer the visa application form questions. The Tribunal is not satisfied that there is any dishonesty in the visa application process and that any concerns the Tribunal has can be put down to poor preparation of the visa application form and a misunderstanding of the questions in the visa application form, or lack of knowledge by the review applicant’s mother, such as the previous application for a visa to come to Australia.  Another example of poor preparation was demonstrated by the Tribunal had proceeded on the basis that the graduation from university was related to the review applicant, because no other siblings were identified in the form. This inference could have been avoided if the review applicant’s siblings had been detailed in the form, and a specification of whose graduation the visa applicant would be attending.

3. The Tribunal is satisfied that the visa applicant’s son in Vietnam has no adverse Australian migration history and will act as an incentive for the visa applicant and her husband to return to Vietnam at the conclusion of the visit. The Tribunal accepts that the review applicant’s sister is having a graduation from her university course, and that this has provided an opportunity for family to travel to Australia to see this, as well as engage in other tourist like activities.

4. The Tribunal is also satisfied that the failure to identify the review applicant’s mother’s siblings as members of the same family unit was done on the basis that the ‘family unit’ would be the visa applicant and her husband travelling together. The migration history of the siblings shows that those siblings come to Australia and comply with visa conditions, and it would be fair to reason that the visa applicant would do the same, especially in light of the fact that the visa applicant’s husband has travelled in and out of Australia several times and complied with his visa grant.

5. Turning to the question about the visa applicant’s son in Australia, the Tribunal accepts that the visa applicant, review applicant, and review applicant’s mother had no knowledge that he is an unlawful non-citizen in Australia. It appears that this cousin has been less-than-honest with his family about his current circumstances. The Tribunal does not consider the visa applicant’s son’s adverse migration history against the visa applicant.

6. The Tribunal accepts the evidence that the visa applicant has a business in Vietnam, as well as finances in a Vietnamese banking institution. The Tribunal accepts the documents submitted establish this. While the Tribunal acknowledges that businesses can close and that money in banking institutions can be taken out, the Tribunal is satisfied that the visa applicant intends to return to Vietnam at the conclusion of her trip to Australia given she has those assets and has positively expressed no claimed fear of harm returning to Vietnam. The Tribunal is satisfied that the purpose of the visa applicant’s proposed trip to Australia is genuine and that there has not been an attempt at dishonesty by the review applicant, visa applicant or review applicant’s mother in their dealings with the Department or the Tribunal.

7. The Tribunal notes that as a result of the grant of this visitor visa, the potential is for the visa applicant to be in Australia with her husband, son (presuming that he is not detained and removed from Australia as an unlawful non-citizen) as well as a number of her siblings. However, the Tribunal is satisfied in the circumstances of this review that the presence of those family members will not outweigh the visa applicant’s intention to return to Australia after her trip to Australia.

   CONCLUSION

8. 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.

9. Any residual concerns that the delegate may have can be adequately addressed by the imposition of the security offered by the review applicant.

   DECISION

10. 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.

    Nathan Goetz

    
    

    Member