Nguyen (Migration)

[2019] AATA 6525

Nguyen (Migration) [2019] AATA 6525 (31 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Bich Hong Nguyen

VISA APPLICANT:  Ms Thi Huong Nguyen

CASE NUMBER:  1820769

DIBP REFERENCE(S):  BCC2018/3884451

MEMBER:Ian Garnham

DATE AND TIME OF

ORAL DECISION AND REASONS:         31 October 2019 at 3:06 pm (VIC time)

DATE OF WRITTEN RECORD:                28 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the 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 28 November 2019 at 3:26pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family Stream – genuinely intends to stay in Australia temporarily – visa to visit children and grandchildren – previously complied with visa conditions – husband overstayed previous visa – remorseful of non-compliant behaviour – compliant travel by other family members – incentives to return to home country – family – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 July 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 31 October 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

   ORAL DECISION OF MEMBER GARNHAM

3. MEMBER:  So the following are my reasons for decision and decision in this matter. 

4. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 July 2018 to refuse to grant the visa applicant a visitor class FA visitor under section 65 of the Migration Act.

5. The 50 year-old visa applicant applied for the visa on 22 June 2018.  At the time the visa application was lodged Class FA contained one subclass, subclass 600 visitor visas.  This has four streams.  In this case the applicant applied for the visa seeking to satisfy the primary criteria in the sponsored family stream.

6. The criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations. Relevantly to this case they include clause 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.

7. The delegate refused to grant the visa on the basis that the visa applicant did not meet clause 600.211 because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted.

8. The 29 year-old review applicant is a daughter of the visa applicant and she appeared before the tribunal on 31 October 2019 to give evidence and present arguments.  The tribunal also received oral evidence from the visa applicant via conference telephone and from [the review applicant’s] sister. 

9. The tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  The review applicant was represented in relation to the review and her representative attended the hearing.

10. They also provided a submission with the original application, which contains significant information on which the tribunal has relied in this case.  That submission is at folios 45 to 49 of the departmental file.

11. The issue in this case is whether clause 600.211 is met.  This requires the tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia.  The tribunal is required to have 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.

    Background:

12. Before discussing the purpose of this application it is useful to provide the following family background to this case. 

13. It appears the review applicant is one of six siblings, three of whom, including herself, are currently residing in Australia.  The review applicant’s visa applicant mother and her father along with three daughters [who are siblings of the review applicant] reside in Vietnam.  One of these girls in Vietnam or sisters in Vietnam now lives independently with a partner and four children whereas the two younger sisters continue to reside with the visa applicant and her husband.

14. Returning to Australia the review applicant claims to live in Australia with her husband and two children.  The original purpose of this visa application was for the visa applicant to attend the birth of her sister’s first child in September 2018.  Because the application was rejected she was unable to do that.

15. When the tribunal questioned the visa applicant at today’s hearing about why she wanted to come to Australia her response was that she wished to see her children and grandchildren who reside here.  In keeping with the background I set out [above] aside from forgetting to mention one student daughter who is currently in Australia as a student. 

16. This means the visa applicant has three daughters in Australia and three grandchildren whereas in Vietnam she also has three daughters and four grandchildren all being children of her daughter living independently.

17. Having said all that the purpose for seeking to visit Australia disclosed at the hearing being to visit children and grandchildren is a purpose for which a visa in the sponsored family stream may be granted.

    cl.600.211(a):

18. In considering clause 600.211(a), which is whether a visa applicant genuinely intends to stay for this purpose, the tribunal must consider whether they have complied substantially with the conditions of a last substantive visa held or any subsequent bridging visas.

19. In this case the tribunal has relied on the evidence contained in the submission and in considering firstly the migration history of the visa applicant’s husband or the father of the review applicant.  He has travelled to Australia in both 2012 and also the end of 2013 stretching through to the beginning of 2015.  I assume the travel in 2012 was compliant travel.  With respect to the travel primarily in 2014 I have relied on the evidence contained in the submission before the tribunal and the Department and accept that the information set out at paragraphs 16 to 17 of that submission accurately declare the non‑compliant circumstances with respect to his travel in 2014.

20. And based on the evidence given at hearing today I accept that the visa applicant has herself made a compliant trip to Australia in 2013 when she travelled with a sister who now resides in Vietnam.  And finally, an older sister, another sister, who now resides in Vietnam made travel to Australia as a student some time previously.

21. I recognise that this significant amount of travel by other family members is largely compliant but that, as indicated, in particular the overstaying of the review applicant’s father or the visa applicant’s husband has been somewhat determinative in assessing previous visa applications.

22. However, the tribunal has determined to attach diminished weight to the non‑compliant travel by the father due to what appears to be essentially substantially compliant travel demonstrated by other family members.

    cl.600.211(b):

23. Moving on to consider subclause 600.211(b) the first of these two conditions are condition 8101, that the visa applicant must not work whilst in Australia.  And condition 8201, that they must not engage in study or training in Australia for more than three months. 

24. The tribunal has noted that consistent information in both the Departmental file and the tribunal file indicates that the visa applicant is heavily involved with a fishing supply business in Vietnam.

25. In conjunction with the sought travel time of approximately one month, which I find to be consistent with the likelihood that the visa applicant does intend to return to Vietnam after such a period and for these reasons I consider it is unlikely that she will seek to work or engage in study or training in Australia.

26. Condition 8503 would also apply, that the visa applicant is not entitled to a substantive visa other than a protection visa whilst remaining in Australia.  In regard to this condition I note that there is [no] information before me to indicate that the visa applicant is in a position to lodge a protection visa application. 

27. Similarly, condition 8531, intimates that the visa applicant must not remain in Australia at the end of the permitted stay.

28. I have no information before me to definitively determine that the visa applicant would not seek to stay in Australia for an extended period as her husband did.  Other than I note that the husband and the visa applicant would be in different countries and they have a long term relationship over a long period.  They share six children.  And the visa applicant’s husband represents a significant incentive for the visa applicant to depart Australia and return home.

    cl.600.211(c):

29. Finally, turning to other relevant matters, which is clause 600.211(c), once again expressed in the submission, the tribunal notes that the visa applicant or the applicants expressed remorse at the non-compliant behaviour of their father and husband. 

30. And the tribunal considers that the visa applicant and the other family members who have provided evidence to the tribunal are acutely aware of the detrimental impact future travel plans could have for family members, if the behaviour was repeated.

31. For this and the other reasons previously stated the tribunal is satisfied that the visa applicant does genuinely intend to stay temporarily in Australia for the purpose for which the visa is to be granted.  And the tribunal finds that the requirements of clause 600.211 are met. 

32. Therefore, the formal decision of the tribunal is as follows; 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; that is clause 600.211 of Schedule 2 to the Regulations.

    END OF ORAL DECISION

    DECISION

    The Tribunal remits the decision under review with the direction that the applicant meets the following criteria for a subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations

    Ian Garnham
    Member