Nguyen (Migration)

[2021] AATA 4842

Nguyen (Migration) [2021] AATA 4842 (2 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Thu Trang NGUYEN

VISA APPLICANT:  Mr Viet Dung HOANG

CASE NUMBER:  1934172

HOME AFFAIRS REFERENCE(S):          BCC2019/4517554

MEMBER:Nathan Goetz

DATE:2 December 2021

PLACE OF DECISION:  Sydney

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

Statement made on 02 December 2021 at 2:07pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – visa applicant onshore at time of review decision – applicant entered Australia on another visa – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.412

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 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 identifies as a 33-year-old male from Vietnam.

3. The review applicant identifies as a 31-year-old woman from Vietnam and is the visa applicant’s spouse.

4. The visa applicant applied for the visa on 9 September 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 Sponsored Family stream.

5. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 on 28 October 2019. The review applicant applied to the Tribunal to review the decision to refuse to grant the visitor visa.

7. On 27 October 2021 the Tribunal wrote to the review applicant for two reasons.

8. The first reason was to invite the applicant under s.360(1) of the Act to a hearing scheduled for 22 November 2021.

9. The second reason was to invite the applicant under s 359(2) of the Act to provide information to the Tribunal by 10 November 2021.

10. The information requested under s 359(2) of the Act was as follows:

    ·Australian migration history of the review applicant

    ·Any information relating to any previous visa held by, or visa application made by, the visa applicant for Australia or any other country

    ·Full name and date of birth, dates of arrival of any other of the review applicant’s close relatives who have come to or visited Australia within the past 10 years (including parents, brother, sister, child, uncle, aunt, cousin, niece or nephew)

    ·Full name and date of birth, dates of arrival / visit of any other close relatives the review applicant has sponsored or invited to visit Australia within the past 10 years.

    ·Updated information about the visa applicant’s employment and financial situation in their home country.

    ·Any other information relevant to the visa applicant’s activities or commitments or relationships in their home country that would encourage them to return at the end of a visit.

    ·Any information concerning any other travel by the visa applicant outside their present country of residence.

    The letter explained that if the Tribunal did not receive the requested information within the specified time period, the applicant would lose their entitlement to a hearing and the Tribunal could make a decision on the review without taking further steps to obtain information from the applicant. As no response to this request was received by 10 November 2021, the hearing scheduled for 22 November 2021 was cancelled.

11. On 15 November 2021 the review applicant was invited under s 359A of the Act to comment on or respond to certain information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The review applicant was asked to comment on or respond to this letter by 29 November 2021. The particulars of that information were that the visa applicant, Viet Dung Hoang, arrived in Australia on 7 March 2020 holding a provisional partner visa and remains in Australia. This letter explained that if the Tribunal were to rely on the above information in making a decision, it may affirm the decision under review because the applicant would not be able to satisfy the circumstances applicable to the grant of the visitor visa. This was because the visa applicant lodged the visitor visa application while he was offshore. He was required to be offshore at the time of the grant of the visa. The Tribunal did not receive a response to this request by 29 November 2021.

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

    FINDINGS AND REASONS

13. The visa applicant was granted a Visitor (Subclass 600) Visa on 16 July 2019 and arrived in Australia on 3 August 2019. This visa ceased on 1 September 2019, on which date the visa applicant departed Australia.

14. The visa applicant then applied for the Visitor (class FA) (Sponsored Family) visa that is the subject of this review on 9 September 2019. When the applicant commenced this application, he was offshore. On 2 March 2020, the visa applicant was granted a Subclass 309 Partner (Provisional) visa. He then arrived onshore on 7 March 2020.

15. As the visa applicant was offshore at the time of application, he is required to be offshore at the time of the grant of the visa. As the visa applicant is currently onshore, he does not meet the circumstances applicable to the grant of the visa under the Regulations.

16. For the above reasons the Tribunal is not satisfied that the visa applicant is offshore and, therefore, he does not meet the circumstances applicable to the grant of the visa under cl 600.412. Given that the applicant does not meet the circumstances applicable to the grant of the visa, it is unnecessary to consider whether the applicant satisfies cl. 600.211.

    DECISION

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

    Nathan Goetz
    Member