NGUYEN (Migration)

[2020] AATA 2805

NGUYEN (Migration) [2020] AATA 2805 (25 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Tuong Vi NGUYEN

CASE NUMBER:  1821242

HOME AFFAIRS REFERENCE(S):          BCC2018/2411364

MEMBER:Tania Flood

DATE:25 May 2020

PLACE OF DECISION:  Sydney

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 25 May 2020 at 11:50am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visiting Australian citizen partner – exceptional circumstances exist – genuine intention to stay temporarily–decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 9 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 1 June 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. The visa was refused on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that she had complied substantially with the conditions to which her last substantive visa was subject and because the delegate was not satisfied that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. With her prior consent the applicant appeared before the Tribunal on 21 May 2020 by telephone to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s partner.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review.

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

   BACKGROUND

8. The visa applicant is a 31-year-old woman from Binh Dinh, Vietnam.  She applied for a further Visitor visa onshore in order to continue living with her de facto partner to satisfy the 12-month relationship requirement for a Partner Visa application.

9. On 22 June 2018 the applicant was invited by the Department to comment on information indicating that she has been working in Australia contrary to her visa conditions.  The applicant did not respond to the letter within the specified time period.  A follow-up phone call was made to the applicant to allow further time to respond to the letter.  As no response was received the Department decided the matter on the available information.

10. In a letter to the Tribunal dated 20 July 2018 the applicant’s partner states that he is able to fully support the visa applicant and there is no need for her to work illegally in Australia.  He stated that they would never jeopardise her chances of staying in Australia by breaching a visa condition. 

    Tribunal hearing

11. The visa applicant and her partner witness provided credible and consistent evidence to the Tribunal which is summarised as follows:

12. The visa applicant confirmed that she last entered Australia about 2 years ago holding a Visitor visa.  She said that she has remained in Australia on a Bridging visa A since applying to extend her Visitor visa.  She confirmed that she has not applied for any other type of visa but indicated she and her partner want to apply for a Partner visa and are waiting for this review to be finalised before doing so.

13. The visa applicant stated that she met her partner in Vietnam in 2017 and they commenced a relationship a few months later.  She said that she and her partner have discussed marriage but have been waiting to secure her next Visitor visa before taking the next step.  The visa applicant’s partner added that they were unaware they could register their relationship in Australia until very recently and said that they have now done so. 

14. The visa applicant said that she has visited her partner in Australia 3 times before her last arrival.  She said the sole purpose of her visits was to spend time with her partner.

15. When asked why she has not already applied for a Partner visa the visa applicant said that they have been waiting for about two years for the outcome of this review.  She said she didn’t understand the law.  Her partner added that the visa applicant has a Bridging visa A which he believes does not permit her to travel out of Australia. 

16. As to what she has been doing in Australia the visa applicant said that she has been a housewife and also helps to take care of her partners six-year-old son when he is staying with them.  Her partner witness added that his elderly mother also lives with them and the visa applicant has helped to lighten her load while he is working.

17. The applicant was asked if she has undertaken any paid work whilst being in Australia and she said she has not.  She said she is fully supported by her partner and her partner witness confirmed this to be the case.  They live together, with his mother, in her partner’s home. 

18. The partner witness confirmed he holds a full-time electrical trades position in a power station earning around $132,000 per year.  He said he works long hours and is on call 24/7 and is sometimes required to work away from home. 

19. The Tribunal discussed with the visa applicant the information contained in the delegates decision about her allegedly working in contravention of her visa conditions.  She denied the allegation.  Her partner witness indicated that they have friends who run a tourist park and said that they stayed in the park over Christmas.  He said it is a very busy time of year and his partner helped out in the shop for a few days while they were there.  He denied she was formally employed.

20. When asked what she will do if the review application is not favourable the visa applicant said that she will have to return to Vietnam but would be very sad to leave her new family.  She said there is no reason why she could not or would not return to Vietnam, but it is her wish to apply for a Partner visa and continue living in Australia.  She added that the coronavirus pandemic would present problems for her returning to Vietnam at this time.

21. In Vietnam the visa applicant said she lived with her parents and younger sister.  She worked in a restaurant but no longer has a job to return to.  When she was working in Vietnam she assisted her parents with the rent and now that she is here she uses part of an allowance provided to her by her partner to send money home to them.  Her partner witness confirmed that he has established a joint bank account into which he deposits $500 per month for his partner to use as she sees fit.  He said he is aware she saves some of this money to send home to her parents.  This testimony is supported by bank account statements provided post-hearing.

22. The visa applicant said that she has never travelled outside of Vietnam and Australia and has not previously applied for or been refused a visa to another country.  

23. Noting that she has been in Australia for more than 12 months the Tribunal asked the visa applicant if there are any exceptional circumstances for recommending the visa be granted.  She responded that she and her partner wanted to get to know each other better and to be certain about the future of their relationship which is why she has remained in Australia so long.  Her partner witness added that their relationship has solidified and said that his partner helps his elderly mother a lot and has developed a very strong relationship with his young son.  He said that his son will be devastated if she cannot remain in Australia.

24. In conclusion the partner witness said that his partner’s long stay in Australia is in part due to the fact that the review process has taken far longer than anticipated.  He said that initially he tried to handle the paperwork for the visa applications himself and it is only now that they have secured a migration agent to assist them.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. 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.

26. In the present case, the visa applicant seeks the visa for the purposes of visiting her Australian citizen partner. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

27. 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)).

28. The Department’s records indicate that the visa applicant was granted a Visitor visa in June 2017 with a cease date of 3 August 2018.  She travelled to Australia on 13 July 2017.  Thereafter she travelled between Vietnam and Australia on several occasions before last returning on 3 May 2018.  On 1 June 2018 she applied for a further Visitor visa and was granted a Bridging visa A in association with the application on 5 June 2018.

29. The delegates decision raised concerns about the visa applicant’s compliance with the conditions of her Visitor visa following an allegation that she was working illegally in Australia.  As discussed with the visa applicant during the hearing there is no evidence before the Tribunal, other than the delegates reference to such matters in the decision to refuse to grant the visa, to substantiate this claim and in the absence of further information the Tribunal has not placed any weight on this.  During the hearing the visa applicant and her partner witness provided detailed testimony about the visa applicant’s activities in Australia and her means of financial support which is confirmed by the evidence provided post-hearing.  The Tribunal found their testimony credible and is satisfied, on the available evidence, that there has not been any non-compliance with the conditions of the visas held by the visa applicant in Australia.

30. 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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

31. Based on the testimony provided during the hearing the Tribunal is satisfied that the visa applicant is fully aware of her visa conditions including that she is not permitted to work in Australia.  On the available evidence the Tribunal is satisfied that she has complied with such conditions.  As noted above, and accepted by the Tribunal, the visa applicant is financially supported by her partner in Australia.  In view of these circumstances, the Tribunal is satisfied that the visa applicant will not and has no need to work in Australia and will not engage in study or training in Australia if she is granted a further Visitor visa.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if she is granted a Visitor visa.

32. The Tribunal must also consider whether the applicant genuinely intends to stay temporarily in Australia.

33. The Tribunal acknowledges that it is the expressed wish of the visa applicant to make an application for a Partner visa to enable her to reside permanently in Australia.  As noted during the hearing it is regrettable that she and her partner have not availed themselves of credible and more timely migration advice to date.   However, the Tribunal is satisfied, based on the assessed credibility of the visa applicant and her partner, that they are in a genuine relationship and that they are committed to, and taking active steps to pursue whichever legal pathway is open to them to apply for the Partner visa, whether it be onshore or on return to Vietnam.   The Tribunal is satisfied that if there is no legal barrier to the visa applicant lodging another visa application onshore then she will do so.  That said, the Tribunal is persuaded, based on her and her partner’s oral evidence that if the visa applicant is required to return to Vietnam in the event her application is refused or in accordance with the conditions of any further visa grant before a Partner visa is applied for and/or granted she will do so.  The Tribunal is persuaded that the visa applicant will not endanger her long-term plans by staying in Australia after the end of a permitted further stay. The Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the stated purpose of the visit.  Further, the Tribunal has had regard to Departmental policy and considers these circumstances are consistent with those objectives. 

34. The Tribunal acknowledges that if a further Visitor visa is granted to the applicant it would result in her being authorised to stay in Australia as the holder of an eligible visa for a total period of more than 12 consecutive months (cl.600.215 of the Regulations).   In such circumstances exceptional circumstances must exist for the grant of the visa.

35. During the hearing the visa applicant and her partner witness respectively pointed out that the delay in processing the application for review has contributed to the length of time the visa applicant has spent in Australia to date.  They also spoke convincingly about the relationship which has formed between the visa applicant and her partner’s young son who lives with them 50% of the time.  They informed the Tribunal that they are planning a long- term future together as a family and that should the visa applicant have to depart Australia suddenly it would have a detrimental effect on the boy.  They also stated that the visa applicant provides invaluable support to her partner’s elderly mother who also resides with them.  In addition, they spoke about the difficulties the visa applicant would encounter if she is required to make plans to depart Australia in the midst of the coronavirus pandemic.

36. The Tribunal notes that there is no binding definition of what constitutes “exceptional circumstances”.  With this in mind and having regard to the abovementioned testimony the Tribunal is prepared to accept that at the present time and in the current circumstances, there are exceptional circumstances in existence for the grant of the visa.

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

38. 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

39. 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.

    Tania Flood
    Member