Nguyen (Migration)

[2020] AATA 5895

Nguyen (Migration) [2020] AATA 5895 (30 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Quang Hung Nguyen

VISA APPLICANT:  Mr Duy Hoa Nguyen

CASE NUMBER:  1821839

HOME AFFAIRS REFERENCE(S):          Bcc2018/2688158

MEMBER:Joseph Lindsay

DATE:30 October 2020

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 30 October 2020 at 11:41am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – visa applicant’s previous compliant visits to other countries – property, financial and strong family ties in Vietnam – review applicant’s aunt sponsored a number of relatives to visit Australia – previous visa compliant visit – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 25 July 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 18 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 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. It is relevant to provide an introductory explanation in this matter.

5. Initially, Mr Quang Hung Nguyen and his wife, Mrs Tung Thanh Thi Le, submitted review applications to the Tribunal in July 2018 in respect to Mr Duy Hoa Nguyen (case number 1821839) and Ms Thi My Dung Nguyen (case number 1821908). Mr Duy Hoa Nguyen and Ms Thi My Dung Nguyen are Mr Quang Hung Nguyen’s brother and sister respectively.

6. These cases were only recently constituted to the Member.

7. Initially, separate hearings were set for both cases on 12 October 2020. However, it quickly became apparent that the hearings should be combined and heard concurrently on 15 October 2020.

8. At the hearing on 15 October 2020, it was quickly identified that Mrs Tung Thanh Thi Le was not the eligible review applicant in accordance with the Act and that Mr Quang Hung Nguyen was the eligible review applicant in accordance with the Act. Accordingly, the Tribunal finds that Mr Quang Hung Nguyen is the eligible review applicant in accordance with the Act and not Mrs Tung Thanh Thi Le.

9. Mr Quang Hung Nguyen and his wife, Mrs Tung Thanh Thi Le, are originally from Vietnam and are now Australian citizens.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. In the present case, the visa applicant seeks the visa for the purposes of visiting Australia to visit his brother, Mr Quang Hung Nguyen. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

14. 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)). There are no issues in this respect as the visa applicant has not ever been to Australia before.

15. 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.600.611(2)):

    ·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.

16. There is no indication that the visa applicant has any intention of not complying with those conditions.

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

    Hearing

18. As indicated above, the Tribunal had a more comprehensive hearing on 15 October 2020. For the purposes of clarity, the Tribunal has endeavoured to summarise the key issues on which it has founded its decision to remit the matter.

19. The Tribunal spoke with the review applicant, Mr Quang Hung Nguyen. Mr Quang Hung Nguyen indicated that his only intent was for both his brother and sister to come visit him in Australia and then return to Vietnam.

20. Mr Quang Hung Nguyen indicated that he runs a restaurant in Bondi Beach with his wife and, because he is too busy running the day-to-day operations of the restaurant, he would prefer not to take leave to go and visit his brother and sister in Vietnam. Mr Quang Hung Nguyen indicated that he has not been back to Vietnam for more than 8 years. Mr Quang Hung Nguyen indicated that his brother and sister (the visa applicants) had never been to Australia before.

21. The Tribunal then spoke to Mr Quang Hung Nguyen’s aunt, Ms Thi Phuong Nguyen, in Newcastle. In her evidence to the Tribunal, Ms Thi Phuong Nguyen indicated that she wanted Mr Quang Hung Nguyen’s brother and sister to visit Australia.

22. The Tribunal then spoke to Ms Tien Le (a witness). Ms Tien Le is Mr Quang Hung Nguyen’s sister-in-law. In short, Ms Tien Le told the Tribunal that the applications for the visitor visas were genuine.

23. The Tribunal then spoke to Mr Quang Hung Nguyen’s wife, who gave an explanation that she had previously used an unscrupulous and fake migration agent and this had caused problems but she asserted that the visitor visa applications were genuine.

24. The Tribunal then spoke to Mr Duy Hoa Nguyen (visa applicant for case number 1821839). Mr Duy Hoa Nguyen said he wanted to see his younger brother and other relations because he had not seen them for years. He indicated that he intended to stay in Australia for about one month. He gave evidence that he had property, financial assets and strong family ties back in Vietnam. He gave evidence that he had children and that while he was away, his eldest son would look after the farm. He gave evidence that he has never left Vietnam before. He gave evidence that while he had initially intended to travel to Australia when the application was made in 2018, he was not sure exactly when he would be able to travel to Australia if the visa was granted, but that he hoped to travel to Australia in the foreseeable future. He gave evidence that he would need to return to Vietnam to run his business and look after his family in Vietnam. He indicated that he did not fear anything in Vietnam and that he was not being persecuted by anybody. He indicated that he does not want to stay in Australia permanently.

25. The Tribunal then spoke to Ms Thi My Dung Nguyen (visa applicant for case number 1821908) who gave much the same evidence about her circumstances as her brother, Mr Duy Hoa Nguyen, except that she is a widow. She also said she had property, financial assets and strong family ties back in Vietnam, and she had children. She gave evidence that while she was away, her eldest son would look after matters in her absence. She indicated that she did not fear anything in Vietnam and that she was not being persecuted by anybody. She indicated that she does not want to stay in Australia permanently.

26. The Tribunal then considered the photos and documentation provided to the Tribunal that were provided in support of the visa application.

27. The Tribunal then spoke to the review applicant, Mr Quang Hung Nguyen. [Sentence deleted.] He said his aunt raised him. Since then, he said, his parents have visited him in Australia a few times already and have always returned to Vietnam. He readily acknowledged that his sister and brother did come to Australia on student visas and had since got married in Australia and had obtained permanent residency. He readily acknowledged that his aunt had sponsored various relatives to come to visit Australia and they had all returned to Vietnam.

    Analysis and findings

28. In consideration of the evidence available to the Tribunal, the Tribunal accepts that credible information was provided to the Tribunal from the review applicant, the visa applicant and the witnesses.

29. The Tribunal did hold initial concerns about the fact that Mr Quang Hung Nguyen’s brother and sister had come to Australia on temporary visas but had since become permanent residents, and whether there was potentially a situation where Mr Quang Hung Nguyen’s brother and sister (the visa applicants in this matter) are seeking to do the same.

30. However, the Tribunal did check Mr Quang Hung Nguyen’s claim that his parents have visited him in Australia a few times already and have always returned to Vietnam, and records available to the Tribunal show Mr Quang Hung Nguyen’s claim to be correct. In addition, the Tribunal did check Mr Quang Hung Nguyen’s claim that his aunt had sponsored a number of relatives to visit Australia who had all returned to Vietnam and, again, records available to the Tribunal show Mr Quang Hung Nguyen’s claim to be correct.

31. Mr Quang Hung Nguyen’s brother and sister who came to Australia on student visas were young and single when they came to Australia and had since got married, and the Tribunal would be concerned if the current visa applicants (Mr Quang Hung Nguyen’s other brother and sister) were in a similar situation, but they are not. The Tribunal accepts that there are strong reasons for both the current visa applicants to desire to return to Vietnam and comply with the conditions of their visa. In particular, the Tribunal places high weight on the finding that Mr Quang Hung Nguyen’s parents and other family members did in fact adhere to the conditions of their visa and return to Vietnam.

32. In the circumstances, the Tribunal is prepared to give the benefit of the doubt.

33. 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

34. 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.

    Joseph Lindsay
    Member