Huynh (Migration)

[2020] AATA 4332

Huynh (Migration) [2020] AATA 4332 (13 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Lan Huynh

VISA APPLICANT:  Miss Ngoc Tu Van Huynh

CASE NUMBER:  1914295

HOME AFFAIRS REFERENCE:               BCC2019/1396883

MEMBER:Rosa Gagliardi

DATE:13 October 2020

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 13 October 2020 at 5:57pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – previous lengthy stay on student visas – poor study record, visa cancellation and applications for tribunal review and ministerial intervention – incentives to remain or return – family members, work, current finances and future earning potential – applicant’s compliant travel to other countries and parents’ to Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
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 Immigration on 23 April 2019 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 19 March 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 (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.

5. The review applicant, the sponsor, appeared before the Tribunal by telephone on

   
   

   22 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Vietnam.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

    The hearing

11. The applicant is a Vietnamese national who is 37 years of age.  She is resident of Ho Chi Minh City and is living with her parents.

12. According to the sponsor, her sister, Ms Lan Huynh, the applicant had travelled to Australia previously as a student.  The applicant apparently studied Information Technology, but she did not study much, and spent her time on other things so her visa was ultimately cancelled.  The applicant just went out with friends instead because she was young, she was only 18-19 years of age and received money from the family.  According to the sponsor the applicant did not work during that period; she just went out with her friends.

13. As there was information on the Departmental file that the Tribunal considered adverse to the applicant, it was required to put this information under s.359AA of the Migration Act to the review applicant, initially and then to the applicant.

14. Specifically, the Tribunal noted that when the applicant was in Australia she applied for Ministerial Intervention.  The Tribunal does not have the details of that request, but it can assume that arguments were put to the Minister that there were humanitarian or compassionate reasons why the applicant should be granted a visa of some sort to remain in Australia.  That request was not successful, however, and the applicant departed Australia in February 2014. 

15. The Tribunal explained that the relevance of the information to the review was that it might indicate that the applicant had an intention previously to remain in Australia permanently.

16. The Tribunal further explained that if it relied on that information it would find that the applicant was attempting to achieve a permanent migration outcome again through the Visitor visa application.  The sponsor declined a break before responding and stated that she did not know much about the past and this matter, but ultimately the applicant did return to Vietnam.  The sponsor clarified that the applicant just wanted to continue studying in Australia.  On this occasion she only wanted to come to visit Australia and visit her siblings and their children for four weeks only as she needed to get back to her duties in her brother’s business.   The applicant relied on a similar response stating she did not ask for a permanent visa as she wanted to stay in Australia to study.  It was not her intention to stay permanently because in Vietnam her siblings had a very good business.  The applicant stated her brother has 4 shops selling materials in a very big market in Ho Minh City. 

17. The sponsor explained that her sister was no longer working in a shop but was managing one of the four shops owned by their brother, selling fabric and traditional dresses.   The sponsor was not sure when the applicant commenced in this managerial role, but when her brother expanded his business, he asked her to manage one of his shops.

18. The applicant has three siblings currently living in Australia.  The eldest brother was living here but returned to Vietnam for business.  The sponsor also stated that she had a sibling in Canada.

19. In terms of finances the sponsor stated that her sister had her own money to spend and that their parents lived on the earnings of other properties held by them.  Furthermore, they had a big family house and their brother was “rich”

20. As the sponsor asserted at hearing that the Department had not provided her with reasons for the refusal, the Tribunal used the benefit of access to an interpreter to read out the Departmental decision to her, some parts in summarised form.

21. The sponsor stated she had not gone to Vietnam for 6 years and her sister had never committed a criminal offence.  She did not see why she could not come to Australia.  Her sister came to Australia in 2000 and stayed here as a Student and returned to Vietnam in 2014. 

22. The applicant advised the Tribunal that her brother paid her in cash and that she earned roughly 13,000,000 Dong per month plus commission depending on sales.

    cl.600.211(a)

23. 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)).

24. The applicant came to Australia in 2000 on a Student visa.  The Tribunal does not have before it the details relating to the applicant’s loss of her Student visa/s.  It appears that she remained in Australia until February 2014 without gaining any qualifications, however, despite the investment made by her family.  The sponsor and applicant confirmed that instead of studying the applicant went out with friends and generally enjoyed herself.  It is not clear to the Tribunal for how long the applicant did not engage in studying while on a Student visa. 

25. The Tribunal accepts that the applicant was very young when she came to Australia and that she had attempted to comply with her conditions to remain enrolled and maintain requisite attendance, but it appears that she failed to so.  The Tribunal does note, however, that the applicant had the refusal by the Department reviewed by the Migration Review Tribunal (MRT) and that any arguments she may have put up as mitigating circumstances did not assist the applicant attain a future student visa.  The applicant then sought the Minister’s Intervention to enable her to continue to study in Australia.

26. Overall, the Tribunal places some adverse weight on the applicant’s conduct in Australia – not necessarily because she had difficulties focussing on her studies but on her continuing stay in Australia when it was open to her to return to her home country when it became evident that she did not enjoy and/or was not suited to studying.  Instead, the applicant went from course to course and the Tribunal is not convinced that this was for the purpose of achieving any qualifications, but rather was for the purpose of maintaining an ongoing presence in Australia.

27. The sponsor emphasised that the applicant was young when she was in Australia and did not abide by her visa conditions.  That may be the case, however, the Tribunal questions why the sponsor did not assist her sister to ensure she abided by her student visa conditions or returned home once it was clear to her that a student visa was not a suitable vehicle for just remaining in Australia to go out with friends.  This does raise questions in the mind of the Tribunal the degree to which the sponsor would on this occasion, if a visa were granted to the applicant, ensure the applicant was at all times compliant with her visa conditions.

28. The Tribunal does acknowledge that the applicant did return home in 2014 when her lawful means for remaining in Australia had narrowed significantly after requesting Ministerial Intervention and this matter goes in the applicant’s favour in a limited way.

29. The Tribunal has had regard to the statement that the applicant and sponsor’s parents have visited Australia on numerous occasions and abided by their visa conditions.  The Tribunal is prepared to accept that this is the case and places some weight on the applicant’s parents’ favourable migration history, nonetheless, the Tribunal notes that the applicant’s profile and migration history are not comparable with those of her parents.

30. Moreover, the Tribunal notes the evidence given that the applicant has travelled for 5 to 7 days at a time in Asian countries, such as China, Singapore, and Thailand as a tourist. In Australia, however, the applicant has siblings and family and Australia is a country which is familiar to her.  It would be fair to say that the applicant may not have previously stayed in Australia for such a lengthy period had it not been for the fact that she had family members here.

    cl.600.211(b)

31. 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:

    ·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.

32. At the time of application, the applicant submitted evidence of a Vietnamese term deposit with a maturity date of 22 July 2019.  The Tribunal noted at hearing that the account was not in the applicant’s name, however, and she responded that it was in her father’s name.  Evidence of another account was also submitted, similarly displaying relatively significant holdings.

33. In addition, the applicant submitted evidence of holding AUD20,821.86 in an Australian NAB account, dated 12 February 2019.  As the delegate noted there were large transfers into the account on certain days.  Nonetheless, the Tribunal notes that the applicant has never pretended that she had significant savings or assets in her own right (at the time of application).  She came to Australia when she was very young and stayed here for a lengthy period and as far as the Tribunal can make out, the applicant was never in lucrative work in Australia. Hence, by the time she returned to Vietnam she was older but as yet had not had time to establish herself in a career.  As was indicated at hearing, the applicant’s family have supported her stay in Australia, and she has relied in the past on their assistance.  It is therefore not surprising that the applicant’s account has injections of larger amounts from external sources.

34. At the time of review, the applicant has provided, as requested by the Tribunal, evidence of updated information, of her financial position.  In a covering statement to the Tribunal, the applicant’s sister (sponsor in Australia) principally wrote, “As she first applied her visa, my father whose name is Mr No Huynh willing to support her.  My father also mentions to our siblings that he will give all his saving to her as she is the only daughter with him and my mother in Vietnam.  I think the total of three savings accounts is around 200,000 Australian dollars.  With his money, she could buy a brand new apartment or a house in Vietnam but my parents wants her to live with them in their house”. 

35. Evidence was submitted of three accounts and the Tribunal notes that as the applicant testified at hearing, her father had transferred these accounts in the applicant’s name.  Furthermore the Tribunal accepts that altogether these accounts amount to around AUD200,000. 

36. In addition, the Tribunal notes that the applicant stated that her brother for whom she now works is wealthy and that she had financial support from her siblings as well.

37. The applicant is currently working for her brother who has given her one of four shops to manage at the large market, retailing fabrics and traditional garments.  At hearing the applicant stated that her brother paid her 13,000,000 Dong per month, plus commission depending on sales (this is equivalent of roughly AUD 779.66 per month).  While such a sum in relative terms might be a good salary for someone living in her family home, relative to Australian earnings and the potential to earn more in Australia in the retail sector or other sectors, it is not so compelling as to motivate the applicant to remain working in her brother’s retail venture.

38. While the Tribunal notes that the applicant is well supported by her family and that her father has transferred his savings to her, her family’s financial background and the financial position of the applicant do not, of themselves, allay the Tribunal’s concerns about the applicant having unfinished business in Australia in terms of either studying or maintaining an ongoing presence here.

39. As put to the sponsor and applicant at hearing, the applicant had gone as far as to seek Ministerial Intervention to enable her to continue to study in Australia even though she had had many opportunities to study previously.   Given her pattern of conduct as regards the applicant’s study, it is difficult to accept that finally she had a change of heart and wanted to gain another student visa to finally achieve an award of some kind in the educational sphere.  After 14 years in the country the Tribunal finds it difficult to accept that had she not used her visas to study up until that time, it was not likely that she would do so in future.  Rather, the Tribunal is inclined to find that the applicant sought Ministerial Intervention to be able to continue to remain in Australia, whether for study purposes or not, and this leads the Tribunal to have serious concerns that the applicant was highly motivated in the past to remain in Australia regardless of the conditions of her visa.

40. The Tribunal has had regard to the applicant’s (in an undated letter to the Tribunal) and the sponsor’s statements that the applicant is not a criminal and has not committed any crimes.  It was a mistake she made in her life and she should not be punished and should be given a second chance. 

41. The Tribunal agrees that it has no punitive role to play as concerns the applicant’s past conduct in Australia.  Nonetheless, the Tribunal has serious concerns that the applicant has previously stayed in Australia for a lengthy period and may do so again.  Further, the Tribunal reiterates that the applicant has demonstrated a high level of motivation to remain in Australia previously and the Tribunal is not convinced that such a motivation has diminished.

42. Importantly, while the Tribunal accepts that the applicant is now earning her own money and is older than when she first came to Australia, and that to some degree her profile has changed since her arrival here in 2000, many other aspects of her profile continue to be the same.  For example, she is highly mobile as she has not established ties with a partner to whom she might have committed to spend a future together in Vietnam.  For all intents and purposes, the applicant is free to start a life in any country she wishes.  The Tribunal has taken into account that the sponsor has stated that the applicant is incentivised to remain in Vietnam because her parents have bequeathed her their wealth as she is the only one living with them and taking care of them.  While the Tribunal accepts that the applicant provides support and assistance to her parents, there does not seem to be any reason why this wealth (or some) cannot be transferred to Australia to enable the applicant to make a good start in Australia.  The Tribunal also notes that the applicant has at least a brother in Vietnam who could look after their parents.

43. Overall, the Tribunal is not satisfied that the incentives for the applicant to remain in Vietnam outweigh those for her to change her status in Australia.  The Tribunal agrees that everyone deserves a second chance but had the applicant’s current personal circumstances been different to the point where the Tribunal could be satisfied that the applicant had put down significant roots in Vietnam, the decision might have been otherwise.

44. The Tribunal has also considered all other relevant matters (cl.600.211(c)).  At hearing the sponsor queried the Tribunal whether it was going to be the case that her sister would never be able to come to Australia.  As explained, that was not the case.  Her applications would be assessed on their merits and the applicant’s circumstances would be taken into account at the time she made her application.  The Tribunal appreciates that the applicant and sponsor will be disappointed and may feel that somehow they are being punished for the applicant’s past mistakes in Australia.  This is not the case.  The Tribunal can only assess the facts as they stand and either reach satisfaction that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, or not.  In this case, as stated above, the Tribunal is not satisfied that the applicant’s life is irreversibly grounded in Vietnam.

1. 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

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

   Rosa Gagliardi
   Member