Ngo (Migration)

[2024] AATA 1929

Ngo (Migration) [2024] AATA 1929 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Han Ngo

VISA APPLICANT:  Mr Hoai Tan Ngo

CASE NUMBER:  2304151

HOME AFFAIRS REFERENCE(S):          BCC2023/1577104

MEMBER:Stephen Witts

DATE:2 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 02 April 2024 at 8:19am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – visiting father – genuine temporary entrant and compliance with conditions – incentives to depart or remain – unemployed with no strong employment or economic incentives at time of application, now semi-skilled, marginal employment – no dependent family members or travel history – girlfriend and intention to marry in future – general economic circumstances – 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 22 March 2023 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 7 March 2023. 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 applicant genuinely intends to visit Australia temporarily.

5. The Tribunal notes that the applicants were invited to attend a hearing on 14 March 2024 but that the review applicant did not present to the hearing stating subsequently that he had car problems and requesting another hearing. The Tribunal acceded to this request and a new hearing was provided on 20 March 2024. The Tribunal further notes that there was not an interpreter available at that time and a new hearing was organised for 28 March 2024.

6. The review applicant appeared before the Tribunal via teleconference on 28 March 2024 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the visa applicant (the applicant).

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

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 Australia. 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)).

13. The Tribunal noted there is no evidence before it of any substantive visa breach by the applicant.

14. The Tribunal has considered all the material before it including evidence provided prior to the hearing evidence given at the hearing.

15. The Tribunal notes it has been provided with a copy of the relevant delegates decision dated 22 March 2023 by the applicant.

16. In this decision it was contended by the delegate that the stated main purpose for the visit to Australia was for the purpose of the applicant to visit his father in Australia. It was also contended by the delegate that the applicant stated that he is an unemployed hairdresser and did not provide any evidence of an income stream. The delegate contended that the applicant’s lack of strong employment or economic incentives to return to Vietnam at the end of his stay would indicate that it would not be a genuine temporary visit. It was also asserted that the applicant did not appear to have any immediate dependent family members in Vietnam to act as an incentive to him to return, and that he did not provide any evidence of international travel.

17. The Tribunal notes that also included was a statement from the review applicant dated 22 March 2023 stating that he would like his son to visit him as he is lonely now that he is divorced and living by himself. He stated that his son works as a hairdresser in Vietnam but that he is not working at that time due to a decision by government to develop infrastructure through the house that he is living in, and working in, and that therefore he is available to come to Australia but that he must return to Vietnam to continue working.

18. Also included was a birth certificate for the applicant indicating that he was born on 5 May 1990 and that he is the son of the review applicant. Include also was a Vietnamese driver’s licence for the applicant and ID information from Vietnam regarding the applicant.

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

20. The applicant stated that he has never visited Australia before and has never made any other applications to come to Australia. He stated that he has never visited any other countries and has never left Vietnam. He stated that he lives with his mother and does not own any property. He stated that he is now working as a hairdresser. He stated that he has a girlfriend and that he does intend to get married. He stated that he does not have any children. He stated that he has his mother and his sister in Vietnam and his father in Australia, and that he would like the opportunity to visit him as his father is no longer well.

21. The review applicant stated that he first arrived in Australia in 2015 sponsored by his now ex-wife. He stated that he has a son and a daughter in Vietnam, and that he does not have any other family in Australia. He stated that he works as a community carer in the aged care sector. He stated that he returns to Vietnam every year and stays for approximately four weeks and lives with his older brother. He stated that he has two brothers and three sisters all of which live in Vietnam. He stated that he has recently been unwell, and he would like his son to be able to come and visit him particularly when he becomes sick. He stated that he will go back to Vietnam to live when he retires.

22. The Tribunal has considered the above evidence very carefully and now turns to a review of the evidence.

23. The Tribunal notes that the applicant has stated that he has never left Vietnam and does not have any international travel experience. The Tribunal has considered this carefully and finds that this lack of travel experience, particularly to a similarly beneficial nation with good economic and social conditions, is of concern and finds that it suggests that this undertaking by the applicant to travel to Australia is a significant one, and an expensive one, and that it would suggest that the applicant may have other intentions other than to remain on a short-term basis. The Tribunal finds that this lends weight to a contention that the applicant may not be a genuine temporary visitor to Australia.

24. The Tribunal notes that the applicant has not stated that he has any assets and that he lives with his mother. The Tribunal has considered this matter carefully and finds that the applicant’s lack of any economic or financial incentive to return to his home country also lends weight to a contention that the applicant may decide to stay in Australia on a more long-term basis and lacks concrete incentives to return home.

25. The Tribunal notes that the applicant has stated that he has a girlfriend and that he may marry in the future. The Tribunal has considered this matter carefully but also notes that the applicant has no dependents, no children, and no real family commitments to remain in Vietnam at this point. The Tribunal acknowledges that the fact that the applicant has a girlfriend may be an incentive to return to Vietnam but also notes that his girlfriend may seek to join him in Australia at some point in the future. The Tribunal finds that these factors indicate that the applicant lacks an incentive to return to his home country and lends weight to a contention that he may not be a genuine temporary visitor to Australia.

26. The Tribunal notes that the applicant does have his father in Australia living here in a house with a job and some financial resources because of that and therefore the Tribunal finds that this would act as an incentive for the applicant to remain in Australia on a more long-term basis and this also lends weight to a contention that he is not a genuine visitor to Australia.

27. The Tribunal also notes the economic conditions in Vietnam as demonstrated by recent country information reports made by the Department of Foreign Affairs and Trade and has considered that the economic circumstances, in particular the economic opportunity for younger people, is deleterious when compared with the opportunities provided in Australia. The Tribunal finds that this is a relevant factor and also lends weight to a contention that once here in Australia the applicant may seek to stay on the more long-term basis and may not be a genuine visitor.

28. The Tribunal also notes that from the evidence provided the applicant has, at best, reasonably semi-skilled marginal employment interspersed with periods of unemployment and that therefore this would also act as a disincentive for the applicant to return home to his home country.

29. Taking all these factors into consideration the Tribunal finds that should the visa applicant be successful in coming here as a visitor taking into contention the circumstances both in the visa applicant’s home country as above and also the visa applicant’s family circumstances in Australia that the visa applicant may seek to stay here in some form on a long-term basis and that he does not genuinely intend to stay in Australia temporarily.

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