Nguyen (Migration)

[2020] AATA 120

Nguyen (Migration) [2020] AATA 120 (20 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Lan Anh Nguyen

VISA APPLICANT:  Mrs Thi Hue Nguyen

CASE NUMBER:  1827155

HOME AFFAIRS REFERENCE(S):          CLD2018/50175430

MEMBER:Bridget Cullen

DATE:20 January 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 20 January 2020 at 2:51pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – visiting sister’s family – history of compliance – number of trips, and duration to Australia – limited economic ties to Vietnam – transportable employment – intention to comply with visa conditions – prospect of work in Australia – incentives to return to home country – 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 Immigration on 31 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 23 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. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because they did not believe the visa applicant genuinely intends to stay temporarily in Australia for the stated purpose of their visit.

5. The review applicant appeared before the Tribunal on 11 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, via telephone. 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 decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting their sister’s family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. 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)).

10. The visa applicant has previously visited Australia three times (and had been rejected a visitor visa once previously). Their visits date back to 2012, 2014, and 2015. They stayed for the duration of the visa and returned on each occasion, indicating substantial compliance with their visa grants.

11. The review applicant’s evidence, both at the hearing, and in her written submissions, sets out her position as follows:

    ·Her sister, the visa applicant, Nguyen Thi Hue, has a Bridal and Makeup business in Vung Tau, Vietnam (as is common in Vietnam she has also ‘adopted’ a western Facebook name, in her case ‘Anna Nguyen’);

    ·The visa applicant and her husband, Phuong, have a happy marriage.

    ·The visa applicant has a bank balance statement (provided to the Tribunal) which indicates that she has approximately USD 55,000 in her bank accounts in Vietnam. The review applicant says that this shows the success of the visa applicant’s business.

    ·The review applicant is prepared to put up a security bond for the immigration department to retain while her sister, the visa applicant, is in Australia. On short notice, she can afford up to AUD 25,000 for this purpose.

12. The Tribunal accepts that the visa applicant is married, and notes that it has received a copy of a translated Certificate of Marriage, indicating that the visa applicant and her husband’s marriage was registered on 26 October 2015.

13. Although the Tribunal has heard evidence from the visa applicant in relation to her marriage affording an incentive to return to her home country, it has not heard evidence from the visa applicant’s husband.  The visa applicant proposes to travel to Australia with her young daughter, who is 4-years old (born in 2015).

14. The review applicant runs a beauty salon business in Australia, as is revealed by deposits for “pedicure” services on the ANZ Bank Account statements she provided to the Tribunal.

15. Whilst the Tribunal acknowledges that it has been provided with some Vietcombank records for the visa applicant, the records are for a 6-month period only, ending in July of 2018.  The Tribunal accepts that, from time-to-time, the visa applicant earns money in Vietnam from her make-up business.

16. The visa applicant does not own any property in Vietnam. She lives in a house located in Lac Long Quan Street, Vungtao, with her mother, child, and husband.  They live upstairs, and the make-up studio is downstairs.  The house is owned by the review applicant. 

17. The visa applicant says that she will return home, as she has a “business to run”.  The Tribunal acknowledges that the review applicant has complied with her previously held visas.  

18. Although the visa applicant says that she would need to return to her business, the Tribunal notes that the provision of beauty services is an easily transportable business, given its nature.  For this reason, the Tribunal cannot place any significant weight on the visa applicant’s assertion that she needs to return.  There is limited evidence before the Tribunal supporting anything more than sporadic payments for a period in 2018, and a Facebook presence.  Beyond this, the Tribunal has no tangible evidence to support the business providing an incentive for the visa applicant to return.

19. The Tribunal considers that the number of trips, and duration, by the visa applicant to Australia, when viewed in conjunction with the review applicant’s transportable employment, limited economic ties to Vietnam, casts doubt on the review applicant’s intention to only stay in Australia temporarily.

20. 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.

21. The Tribunal has also considered all other relevant matters (cl.600.211(c)). The Tribunal has concerns that the visa applicant may work while in Australia.  The Tribunal notes that there would be few, if any, impediments, to the visa applicant leaving her business in Vietnam behind, with no financial consequences to her were she to close shop, and instead seek opportunities in Australia. 

22. Although the Tribunal accepts that the visa applicant is married, and that there is some incentive for the visa applicant to return to Vietnam, the Tribunal considers that this incentive is outweighed by the visa applicant’s lack of economic ties to Vietnam and the prospect of work in Australia.  The Tribunal does not consider that the visa applicant’s business is stable and a strong incentive to return, particularly where the premises for the business are owned by the review applicant.

23. 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

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

    Bridget Cullen
    Member