NGUYEN (Migration)

[2021] AATA 765

NGUYEN (Migration) [2021] AATA 765 (5 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Thanh Long NGUYEN

VISA APPLICANT:  Mr Van Tre CAO

CASE NUMBER:  1828355

HOME AFFAIRS REFERENCE(S):          BCC2018/2877291

MEMBER:F. Simmons

DATE:5 January 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 5 January 2021 at  4:14pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – genuine temporary stay criterion – strong incentive remain in Australia – no immediate dependants –economic incentives for him to remain in Australia –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 359

Migration Regulations 1994, Schedule 2, cls, 600.211, 600.231

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38
Prasad v MIEA (1985) 6 FCR 155

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 August 2018 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 29 July 2018. 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.

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 because the delegate was not satisfied that the visa applicant genuinely intended to visit Australia temporarily for the purpose for which the visa was granted.   

5. The review applicant appeared before the Tribunal on 30 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Application to the Department

7. The visa applicant is a citizen of Vietnam born on 12 February 1984 . According to the visa application, he has two uncles in Australia and he wants to visit Australia to ‘visit family’, ‘attend uncle’s birthday’ and ‘explore the country’. He wants to visit Australia for ‘up to three months’. He works at Huong Thao Fashion Garment company where he is the head of the mechanical and electrical department, a position he said he had for nine years. He did not respond to question of the application form which asked him to declare his marital status. The visa application was accompanied by various documents, including: a labour contract issued to the applicant on behalf of the Huong Thao Fashion Garment Company, the visa applicant’s curriculum vitae, an application for confirmation of family relationship to the People’s Committee of Xuan Loc commune, an identity card, a birth certificate, the biodata page of the passport of the visa applicant’s uncle (the review applicant), and the biodata page of the passport of the visa applicant.

   Application for review

8. On 28 October 2020, the Tribunal wrote to the review applicant and requested certain information under s.359(2) of the Act. The Tribunal sought information about close relatives of the review applicant who have travelled to Australia in the last 10 years;  the visa applicant’s current employment and financial situation in Vietnam; any other information relevant to the visa applicant’s activities or commitments or relationships in their home country that would encourage him to return at the end of a visit; information about the review applicant’s relationship with the visa applicant, including when he last saw the visa applicant; and any information concerning any other travel by the visa applicant outside their present country of residence.

9. The review applicant responded to the request on 15 November 2020 (the written response). This written response states the visa applicant is the nephew of the review applicant and that the applicants last saw each other in 2018 in Vietnam. The visa applicant will be motivated to return to Vietnam because he has ‘a secure job, career is progressing, family and friends (good social network)’. The review applicant’s two younger brothers have previously visited Australia: one brother has visited Australia once, the other twice. 

10. Accompanying the written response was a bank statement for the visa applicant and a document titled confirmation of savings dated 6 November 2020. This documentation indicates that visa applicant held savings of VND200,000,000 in a Vietnamese bank account, which is the equivalent of USD8,639 on 6 November 2020. This statement does not show evidence of income over time.

11. Also accompanying the written response is a document titled ‘certificate of wages and employment’ for the visa applicant. It states that the Huong Thao company was dissolved due to ‘difficulty of COVID-19’and the visa applicant moved to Bao Long company. A ‘position statement and income summary for the applicant from ‘20/07/2020 to now’ indicates his monthly income is VND15,000,000 and is signed by Bao Long’s company manager. The documentation includes a phone number of a contact at Bao Long company.

12. The Tribunal determined it was reasonable to hold the 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. At the hearing the Tribunal discussed with the review applicant the conditions to which the visitor visa would be subject and its concerns that the visa applicant would either work in breach of condition 8101 or remain in Australia beyond the end of his permitted stay in breach of condition 8531. Where relevant the evidence of the visa applicant and the review applicant is discussed further below.

    Issue on review

13. 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.

14. In the present case, the visa applicant seeks the visa for the purposes of visiting his uncle. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

15. 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)). The visa applicant has not travelled outside of Vietnam and therefore there no relevant history of compliance or non-compliance.

16. 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):

    ·8101 – must not work in Australia;

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

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

18. The Tribunal observes that it is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the review applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the review applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by a review applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

19. The review applicant is an Australian citizen who was born in Vietnam in 1949. He is the uncle of the visa applicant. The visa applicant is a 36-year-old Vietnamese citizen.  He is unmarried and lives alone in a rental property in Ho Chi Minh city. He does not own property. He has not travelled outside of Vietnam before. He told the Tribunal that he works as an electrician in Ho Chi Minh city for Bao Long company. He told the Tribunal that he wants to visit Australia to see his uncle and the beautiful scenery. He said he last saw his uncle in Vietnam in June 2018. When asked how he will pay for accommodation in Australia, he said he has money and referred to the bank statement that was provided to the Tribunal.

20. The Tribunal found the review applicant’s evidence about his marital history, family composition, and how many times his younger brothers had visited Australia to be vague and occasionally confused.  At the hearing, he indicated that he had previously appeared before the Tribunal (differently constituted) when he successfully applied for review of the decision to refuse a partner visa application by his former wife and her dependent child. He told the Tribunal he and his wife divorced a few years ago, he couldn’t remember exactly when. When asked how many times he had been married, he initially said once before clarifying that he had in fact been married twice (the second marriage occurred in 2007 and he said his divorce from his first wife occurred in 2002). When asked about his family composition, he indicated he had two sisters before clarifying he had three sisters and four brothers. He told the Tribunal his two younger brothers have visited Australia and one brother has visited on more than one occasion but he could not recall which brother had visited multiple times. The review applicant sought to explain his difficulty in recalling information about his family composition and the number of times his brothers have visited Australia by saying that he was elderly.

21. For the purpose of the decision, the Tribunal accepts that the review applicant is the uncle of the visa applicant. Departmental records indicate that the review applicant  acquired citizenship in 1989 after arriving in Australia as a refugee. The visa applicant and review applicant gave consistent evidence that the visa applicant had no problems living in Vietnam. The Tribunal’s concerns about whether the visa applicant intends to comply with the conditions of the visitor visa relate to whether the visa applicant would be tempted to work in Australia in breach of his visa conditions or to remain in Australia after the end of his permitted stay to earn comparatively higher wages than those available to him in Vietnam.

22. While the Tribunal accepts that the review applicant is the uncle of the visa applicant, the applicants do not appear to have a particularly close bond. The review applicant could only provide limited information about the visa applicant’s employment in Vietnam: he told the Tribunal that the visa applicant worked as an electrician but was unable to answer questions about how long the visa applicant had worked as an electrician. The applicants indicated that they last saw each other in 2018 when the review applicant was in Vietnam, with the visa applicant indicating they saw each other in June 2018. Movement records indicate the review applicant was in Australia, not Vietnam, in June 2018, but the Tribunal is willing to accept that the visa applicant may have been referring to a visit that occurred in March 2018 or June 2019 when movement records indicate the review applicant was offshore.  

23. The visa applicant’s evidence about his employment history was confused and shifted over time. At the hearing, the visa applicant told the Tribunal he is currently employed as an electrician by Bao Long company.  Before the hearing the Tribunal was provided with documentation in support of the applicant’s claimed employment, including a document indicating Bao Long Company was formerly known as Huong Thao Fashion company (the company identified as the visa applicant’s employer in the visitor visa application). However, when asked whether Bao Long company had ever been known by a different name, he initially said no. The Tribunal then asked how long he had worked at Bao Long Company and he said since 20 July 2020. He told the Tribunal that between 2010 and 2018, he worked as an electrician at a fashion company called Huong Thao Fashion company. Asked when in 2018 he stopped working for this company, he said on 14 April 2018. He then gave evidence that he still worked at this company but the company changed its name to Bao Long. He was paid VND15 million per month, which is the equivalent of AUD859.00 and he worked full-time, six days a week.

24. The visa applicant initially said Bao Long had never been known by a different name, but he then claimed (consistent with the documentation submitted to the Tribunal before the hearing) that Huong Thao Fashion Company changed its name to Bao Long and that he continued to work at the company after the change of name. The Tribunal also had concerns about the plausibility of the visa applicant’s claim that he is eligible for 12 weeks paid leave from his current employer: this is a significant period of leave and, as noted at the hearing, this claim is also not supported by documentation from his employer. Given the shifts in the visa applicant’s evidence about the relationship between Bao Long company and Huong Thao company, the Tribunal has doubts about the credibility of the visa applicant’s claims to have been continuously employed as an electrician in Vietnam. But even if the Tribunal proceeds on the assumption that the visa applicant’s employment at Bao Long is as claimed, the Tribunal is not satisfied that his claimed employment represents a significant inducement for him to return to Vietnam at the end of his permitted stay.

25. The applicants gave evidence that the visa applicant will be responsible for financing his trip to Australia. In this context, the Tribunal is concerned that the visa applicant  may be tempted to work in Australia to cover costs associated with his visit and to earn comparatively higher wages than he could earn in Vietnam.

26. Of particular  concern to the Tribunal are the unconvincing reasons given for the visa applicant’s visit and the vague and limited information provided about his planned activities in Australia.  The visa applicant stated he wanted to see Australia and his uncle. When asked what would motivate him to return to Vietnam at the end of his stay, he responded that he just wanted to go over and see Sydney and see his uncle and then he would go back. He also said his parents would want him to live in Vietnam and get married. Asked why he wanted to come to Australia for three months, he said Australia had beautiful scenery and he wanted to have a trip so he could see all the places. When invited to tell the Tribunal what places he wanted to see, he only identified one place:  the opera house.

27. The review applicant’s evidence about what the visa applicant planned to do in Australia was also vague. He told the Tribunal the visa applicant wanted to see his uncle and Australia. When asked where the visa applicant would stay while he was in Australia, the review applicant said he will stay at the review applicant’s house. When asked if the visa applicant would stay with the review applicant the whole time, the review applicant reiterated the visa applicant would stay with him. Asked what the visa applicant would do all day, the review applicant said he can visit the shops in Bankstown. He added the visa applicant would probably take some time off and drive around Australia. Asked who would cover the costs of the visa applicant's travel, the review applicant stated that the visa applicant would cover his own costs although later, when asked whether he would ask the visa applicant to pay for his accommodation, he indicated he would not ask him to do so. 

28. Although the visa applicant listened to the review applicant give evidence to the Tribunal, the visa applicant did not mention any desire to drive around Australia. The Tribunal considers it is unclear whether the visa applicant intends to stay at the review applicant’s home for the duration of his proposed three month visit to Australia or indeed what he plans to do during his proposed three month stay. The visa applicant gave evidence that he had savings in the sum of VND200,000,000 (AUD11, 459) which he could use to cover his travel costs and accommodation in Australia. The Tribunal has considered the visa applicant’s bank statements but these statements do not indicate how he accumulated these savings. The Tribunal is further concerned that the parties have not adequately explained why the visa applicant wants to spend his savings (equivalent to over a year’s salary) on a three-month trip to Australia to stay at his uncle’s house and visit places in Australia. 

29. The Tribunal finds the claimed purpose of the applicant's proposed visit is unconvincing and this raises the possibility his purpose may be other than that which is claimed. Having regard to all evidence before it, the Tribunal is concerned that the visa applicant may be tempted to work in breach of condition 8101 while in Australia or seek better paid work in Australia after the end of his permitted stay. The Tribunal is not satisfied that the visa applicant has adequately explained why he is prepared to take three months leave from his work in Vietnam to stay with his uncle in Australia. In response to a question about whether the visa applicant would be willing to stay for less than three months, the review applicant stated the visa applicant would stay in Australia for whatever time he was permitted to stay  by the Australian authorities:  one month, three months, one year,  six months. This response tends to reinforce the Tribunal’s concerns that the visa applicant may intend to work in Australia in breach of condition 8101 (as he would not be able to afford to stay in Australia for an extended period of time without working) and may also seek to remain in Australia for a more extended period of time.

30. The Tribunal has considered the strength of the applicant's family ties in Vietnam as against those in Australia. While the visa applicant has limited family ties in Australia, the Tribunal considers that there are economic incentives for him to remain in Australia or to work in breach of condition 8101 during his proposed period of stay. While his parents may prefer for him to live in Vietnam, the visa applicant is an unmarried man with no dependents  and he currently lives alone in rental accommodation. The Tribunal considers his family ties in Vietnam (siblings and parents) represent a limited incentive to return to Vietnam at the end of his permitted stay.

1. The Tribunal has considered the applicants’ evidence that the visa applicant will be motivated to return to Vietnam at the end of his permitted stay and the review applicant’s evidence  that two of his brothers had travelled to Australia on visitor visas and returned to Vietnam before the visas expired. However, in evidence to the Tribunal the review applicant struggled to recall how many times one of his brothers had visited Australia or which brother visited Australia more than once and given that the review applicant could not recall basic details such as how many times each brother visited Australia, the Tribunal has very limited evidence with which to compare the situation of the review applicant’s brothers to that of the visa applicant.  Nonetheless, the Tribunal acknowledges that departmental movement records indicate the review applicant’s brothers returned to Vietnam before the end of their permitted stays. There is also no information before the Tribunal to suggest that they did not comply with other conditions to which visitor visas are subject. The Tribunal also notes that the review applicant did not know why Departmental records relating to the review applicant make brief reference to a sponsorship bar in 2013. As it is unclear to the Tribunal on the information before it whether the review applicant was in fact subject to a sponsorship bar or why any bar was imposed, the Tribunal gives this information no adverse weight.  

2. The Tribunal gives some favourable weight to the fact the review applicant’s brothers returned to Vietnam before their end of their permitted stays. However, the Tribunal found the evidence about why he wanted to visit Australia and what he planned to do in Australia troublingly vague.

3. The evidence before the Tribunal does not suggest that there are any compelling or compassionate circumstances for the visa applicant to visit his uncle. While the review applicant told the Tribunal that he wanted to see his relatives before he died, there is no suggestion he is currently unwell, and he has travelled to Vietnam to see relatives in the recent past. The review applicant was also unable to recall which of the two brothers that he sponsored to visit Australia in the past visited Australia more than once and this suggests to the Tribunal that he has not always had extensive contact with relatives who he has sponsored to visit Australia. With respect to the relationship between the applicants, the Tribunal is prepared to accept the review applicant saw the visa applicant on a trip to Vietnam in 2018 (or possibly 2019) and that they have spoken on the phone. However, the evidence before the Tribunal does not indicate that they have a particularly strong bond.

4. The review applicant told the Tribunal that he was prepared to provide a security bond of AUD10,000 or AUD20,000 to guarantee his nephew would return to Vietnam before the expiry of any visitor visa that may be granted. The review applicant provided an ANZ bank statement which indicates he has savings of over AUD23,000, although this statement does not indicate how his savings were acquired. The review applicant told the Tribunal he earns around AUD48,000 per year and the money the review applicant has offered to pay as a security bond (AUD10,000 or AUD20,000) is significant in this context. However, while the Tribunal has considered the review applicant’s offer of a security bond, having weighed up the reasons given for the visa applicant’s return to Vietnam against the factors that would encourage him to either work in breach of condition 8101 while in Australia or remain in Australia beyond his permitted stay in breach of condition 8531,  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.

5. Overall, the Tribunal is concerned that the visa applicant has significant economic incentives to remain in Australia beyond his permitted stay or to work in breach of the no work condition during his proposed three-month period of stay. The Tribunal is not satisfied that the visa applicant has close family ties in Australia that explain his desire to visit for three months, and while he said he wanted to see places in Australia, the only place he identified was the opera house. The visa applicant is single and lives alone in rental accommodation in Vietnam. While the Tribunal accepts that he has parents and siblings in Vietnam, he does not have any family responsibilities that would motivate him to return to Vietnam at the end of his permitted stay. Accordingly, the Tribunal is not satisfied, for the reasons given above, that the visa applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.

6. 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

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

   F. Simmons
   Member