Duong (Migration)

[2023] AATA 1937

Duong (Migration) [2023] AATA 1937 (26 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hang Ni Duong

VISA APPLICANT:  Mr Trung Duong Duong

CASE NUMBER:  2211559

HOME AFFAIRS REFERENCE(S):          BCC2022/1046549

MEMBER:Michael Ison

DATE:26 May 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 26 May 2023 at 2:46pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – visit family member – visa applicant genuinely intends to stay temporarily in Australia – good international travel history – only one month stay – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 9 August 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The visa applicant is Mr Trung Duong Duong who is 28 years old and is a national of Vietnam. Mr Duong is referred to as the visa applicant in these reasons for decision.

3. On 15 March 2022 the visa applicant applied for his first offshore Visitor (Class FA) (Subclass 600) visa. It is the refusal to grant the visa applicant a Subclass 600 visa that is the subject of this review.

4. In the Visitor visa application form, the visa applicant claimed that he intended to visit his sister who was due to give birth to a baby on 15 April 2022 and to assist his sister and brother-in-law to move to a new house at about the same time.

5. In the Visitor visa application form, the visa applicant claimed that the visa applicant’s sister and her husband will provide full financial support to him, and the visa applicant will be living with his sister and brother-in-law while he stays in Australia.

6. The review applicant is Ms Hang Ni Duong who is 35 years old and is the sister of the visa applicant. The review applicant is a national of Australia, having acquired Australia citizenship by conferral on 26 January 2016. Ms Duong is referred to as the review applicant in these reasons for decision.

   The primary decision of a delegate of the Minister

7. The review applicant provided the Tribunal with a copy of the primary decision.

8. The visa applicant applied for the visa on 15 March 2022. 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.

9. Submissions submitted on behalf of the review applicant stated:

   We like to note that visa application was for FA600 family sponsored visitor visa. We are paying all expenses including flights, accommodation, and any on-going expenses. We have been doing so with applicant’s mother who has stayed maybe 7-8 visa terms while staying with us at our residential house and paying up all her expenses including private health insurance.

10. This submission, at least in respect of the stream of Visitor visa applied for, is plainly incorrect, although the Tribunal notes there is a Department Form 1149 ‘Application for sponsorship for Sponsored Family Visitors’ signed by the review applicant on the Department file. In the application for the Visitor visa, the visa applicant responded to the question “Select the stream the applicant is applying for” with “Tourist stream (tourism/visit family or friends)”. As is noted in the visa application form, once a stream is chosen it cannot be changed in that application. This was the basis on which the application was assessed as the primary decision records the stream of Visitor visa applied for as ‘Tourist’.

11. 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.

12. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate did not accept that the visa applicant intended to genuinely stay in Australia temporarily. The delegate was not satisfied on the information provided with the visa application that despite owning land, being employed in Vietnam and having close family members remaining in Vietnam the visa applicant had demonstrated he has strong employment or economic incentives to return Vietnam at the end of the visa applicant’s proposed stay in Australia. The delegate found the visa applicant did not provide evidence of the regular payment of a salary, will rely on the financial support of his sister in Australia and also has close family members in Australia as matters supporting a refusal to grant the visa.

    Tribunal Decision

13. In reaching its decision in this review the Tribunal did not consider holding a hearing to be necessary, as the Tribunal was able to decide the review in the applicant’s favour on the basis of the material before the Tribunal in accordance with s 360(2)(a) of the Act.

14. The review applicant was represented throughout this review by Mr Yoav Oren, who is the husband of the review applicant, as a close family member. Mr Oren is not a lawyer or registered migration agent but for simplicity is referred to as the review applicant’s representative or the representative in these reasons for decision.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. In the present case, the visa applicant’s original purpose for seeking the visa has expired as the review applicant has given birth and moved house. The representative submitted on behalf of the review applicant that the visa applicant now seeks the visa for the following purposes (errors in original):

    The current purpose of the short visit is to come and visit our family, staying with us at Caulfield South for about two weeks, showing him around and later join us for an interstate holiday we’re planning to have at June 23’ for about a week. We plan for the applicant to come for three (3) weeks.

18. These are purposes for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

19. 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)). This consideration is not relevant in the present case as the visa applicant has not held an Australian visa before.

20. 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 (cl 600.611(3)(a)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

21. The representative provided, on behalf of the review applicant, financial information, including bank account statements, for the visa applicant and the review applicant. Based on this information it is evident to the Tribunal that the review applicant has ready access to considerable financial resources and there will be no need for the visa applicant to work for the short time he intends to visit Australia.

22. There is no information before the Tribunal to indicate that the visa applicant intends to pursue any study or training while in Australia.

23. The representative submitted on behalf of the review applicant, in response to a written question from the Tribunal about visa conditions (errors in original):

    To ease department concerns, department can limit visitor visa for a period of one (1) month.  In addition, department can consider apply the following conditions on his visitor visa.
    8101 No Work
    8207 No Study
    8503 No Further stay.

24. Clause 600.611(3)(b) provides that a Visitor visa in the tourist stream can have the following additional conditions imposed:

    ·Condition 8501 – the holder of the visa must maintain adequate arrangements for health insurance while the holder is in Australia;

    ·Condition 8503 – the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia; and

    ·Condition 8558 – the holder of the visa must not stay in Australia for more than 12 months in any period of 18 months.

25. In the applicant’s circumstances of being a young, single man with a standard of living in his home country that for many is considerably inferior to that available in Australia, and with his sister and mother already being in Australia (albeit for his mother on a longer-term temporary visa) the Tribunal’s view is that conditions 8501 and 8503 should be imposed on any Visitor visa granted to the applicant, in addition to the mandatory conditions of conditions 8101 and 8201 being imposed.

26. The Tribunal is satisfied based on the information before it that the review applicant can clearly afford to pay for any health insurance the visa applicant is required to hold and maintain when coming to and staying in Australia.

27. According to the Department’s internet website Visitor visas in the tourist stream are typically granted for three, six or 12 months. This is not the law but a policy approach of the Department. Clause 600.512(1) of Schedule 2 to the Regulations provides:

    (1) If the visa is granted to an applicant outside Australia, temporary visa permitting the holder to travel to, and enter, Australia on one or more occasions, as specified by the Minister, until a date specified by the Minister and to remain in Australia, after each entry, for a period, or until a date, specified by the Minister.  

28. In the applicant’s circumstances, including being a first-time visitor to Australia who is being fully funded by his sister and brother-in-law the Tribunal recommends a departure from Departmental policy by granting the Visitor visa for one month, as requested by the review applicant in the submission quoted above. That submission differs from the visa application but reflects the updated purpose of the visa applicant’s intended trip to Australia.

29. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The representative submitted on behalf of the review applicant (errors in original):

    The family business is a local shop yard for building materials. The business trade in building goods like sand, concreate, paint, timber etc. and sales & distribute for local building sites. The visa applicant main role in the business is to drive the truck distributing goods to the tradesman or builders on the site as per order. ... What we have here is a family-owned business operating from its own front yard on a commercial street. The business is using a few assets like truck & forklift. Business has no credit facility from any bank and no outstanding debts. The business has the purpose of proving a living for the family and nothing more.

30. The representative submitted on behalf of the review applicant that the visa applicant was paid AUD15,000 in salary with other (unspecified) family members being paid AUD38,000 in salary from the business. The review applicant also provided 26 pages of bank account statements for a Vietnamese bank account held in the name of the applicant. All entries were in Vietnamese and the Tribunal could not discern any payments of salary into that account or the applicant’s residential address being stated on the account. The closing balance on 8 May 2023 of the account was only AUD43.

31. In the application for the visa the applicant stated he has been employed since 15 May 2019 at Tan Cua 2 located at 562 Nguyen Duc Thuan, Huong Hiep Thanh in Thi Xa Thu Dau Mot in Binh Duong province. This address is also listed as the applicant’s home address in the visa application. From publically available information this address appears to be a seafood restaurant, but the Tribunal has insufficient information to determine if this is the case.

32. The applicant also provided evidence of two titles to land in his name in Vietnam but again these were in Vietnamese. The Tribunal asked the review applicant to describe in English the address, use and occupation of each of these parcels of land. One title was described as the residential address of the visa applicant, but the address provided is different to that provided in the visa application form submitted on 15 March 2022.

33. As the Tribunal proceeded to a decision on the information before it without a hearing, the Tribunal was unable to clarify the above matters with the visa applicant or the review applicant and does not draw any adverse inferences or make any findings adverse to the visa applicant in relation to them.

34. In submissions the review applicant submitted that the visa applicant’s father and two sisters remain in Vietnam. The review and visa applicant’s parents are separated and live in separate towns or cities. Their eldest sister is aged 37 and has a 10-year-old son while their younger sister is 23 and lives at the family home where the visa applicant and their mother (usually) resides, which is the submitted as the same address as the address for one of the land title certificates but as noted above, that is a different address to that submitted in the visa applicant’s visa application lodged in only March 2022.

35. The review applicant submitted that her and the visa applicant’s mother has been living with the review applicant in Australia since 15 October 2022 as the holder of a Subclass 870 Sponsored Parent (Temporary) visa which entitles their mother to stay in Australia for up to three years. The review applicant provided a copy of the notice of grant of the Subclass 870 visa to her and the visa applicant’s mother. The representative is listed as the approved sponsor. The Subclass 870 visa was granted on 23 January 2023 and expires on 22 January 2026.

36. It may seem somewhat incongruous that the visa applicant’s mother has been granted a temporary visa to live and stay in Australia for up to three years and his sister has been granted Australian citizenship while a delegate of the Minister has rejected the visa applicant’s application to visit Australia for the first time. However, the Tribunal notes that the Subclass 870 visa was granted to the visa applicant’s mother after the delegate of the Minister refused the visa applicant’s visa application. The Tribunal also recognises that there are significant differences in the age and stage of life of the visa applicant and his mother and also that the respective visas they applied for have different purposes and different eligibility criteria.

37. In relation to the incentives of the visa applicant to return home the review applicant submitted (errors in original):

    The applicant likes his life in Vietnam and has no plans or relocating to any other country. He has a girlfriend and many family relatives and friends The applicant does not wish to stay in Australia or any other country he will be visiting without a visa. A breach of visa event like what’s “An overstay” isn’t something that benefit him in any way. A “black stamp” in his Vietnamese passport will deny him any overseas visit at nearby countries like Thailand, Japan, Indonesia including Bali or the United States.

    Furthermore, such a breach of visa conditions is likely to become “adverse evidence” in any other future visa applications by other family member like in the case of his mother who is currently here on a temporary 870 Visa. Clearly at some point this temporary visa will expire and will require a new application. On the other way, a full compliance with his short visit visa conditions this time is likely to become favourite evidence in any future visitor visa he might apply in the future, perhaps for a longer visit.

38. The Tribunal finds there is some force to these submissions without finding them to be compelling.

39. The review applicant provided evidence, which the Tribunal accepts, that the visa applicant visited Singapore from 4 to 6 April 2017, Malaysia from 6 to 9 April 2017 and Japan from 22 to 24 July 2018. No explanation was provided for the very short duration of each of these overseas trips but there is no information before the Tribunal that there has been any adverse immigration finding against the visa applicant in any country, a matter which weighs in support of his claim to intend to visit Australia temporarily.

40. In considering all of the visa applicant’s circumstances and balancing the incentives he may have to return to Vietnam against the incentives he may have to remain in Australia, the Tribunal is sufficiently satisfied that the applicant genuinely intends to stay in Australia temporarily, particularly if the Visitor visa is granted for only one month as requested and the discretionary conditions recommended by the Tribunal are attached to the visa.

41. 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

42. 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.

    Michael Ison
    Senior Member