Nguyen (Migration)

[2019] AATA 2497

Nguyen (Migration) [2019] AATA 2497 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duy Bao Nguyen

CASE NUMBER:  1804597

HOME AFFAIRS REFERENCE(S):           BCC2018/567239 CLF2018/17033

MEMBER:Ian Garnham

DATE:29 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 29 May 2019 at 12:11pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream– not a genuine visitor –intentions to apply for a permanent visa onshore –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

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 2 February 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 31 January 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 the visa applicant has not demonstrated an intention to be a genuine visitor and because he has had a long stay in Australia, therefore the opportunity to engage in genuine tourist activities has already been provided.

5. The applicant appeared before the Tribunal on 24 May 2019 to give evidence and present arguments. The hearing was also conducted in conjunction with a hearing of the visa applicant’s spouse, Mrs Ngoc Quynh Anh Nguyen’s case, who at the same time as the visa applicant; independently applied for a Visitor (Class FA) visa (1804573). This is because the same and similar facts apply to this matter.  The Tribunal also received oral evidence from the visa applicant’s spouse.  

6. The applicant was represented in relation to the review by his registered migration agent.  At the hearing the registered migration agent provided a ‘Chronological history since the applicant’s arrival in Australia’[1].  

   [1] At F: 63 (AAT)

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

   Background:

8. The visa applicant is a Vietnamese citizen and first came to Australia on 03/08/2006 on a subclass 573 Higher Education Sector visa.  He was granted a further subclass 573 Higher Education Sector visa on 20/12/2006.  On 19/12/2012 he was granted a subclass 485 Temporary Graduate visa that ceased to have effect on 19/06/2014.

9. The visa applicant’s wife is also a Vietnamese citizen and she first came to Australia on 27/12/2013. They married in the middle of 2015 and their child was born in November 2015.

10. On 14/07/2014 the visa applicant was granted a further subclass 573 Higher Education Sector visa that ceased to have effect on 12/03/2015.  On 12/03/2015 the visa applicant was granted a further subclass 573 Higher Education Sector visa that ceased to have effect on 15/03/2016.  After this visa ceased to have effect the visa applicant was not granted a new visa until 11/04/2016 when he was granted a subclass 030 Bridging C visa.

11. Then on 11/06/2016 the visa applicant was granted a further subclass 573 Higher Education Sector visa that ceased to have effect on 15/03/2017.

12. On 17/03/2017 the visa applicant was granted a subclass 600 Tourist visa that ceased to have effect on 15/06/2017.

13. On 16/08/2017 the visa applicant was granted a subclass 500 Student visa that ceased to have effect 31/01/2018.

14. Since 31/01/2018 the visa applicant has been on a subclass 010 Bridging A visa, while the application that is the subject of this review, is processed.  He claims that he has had work rights for all of this time.     

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

    The purpose:

16. In the present case, with the original application, the visa applicant sought the visa for the purposes of staying lawfully in Australia during his gap period at University until the second semester of 2018 so he could complete one subject to finish his course.  He requested that the stay be until 20/07/2018.  

17. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

18. Through no fault of his own the purpose of the application for the visa applicant has now changed.  He has now completed his Honours course in Engineering.  The visa applicant claims he is now seeking the visa for 3 months to conduct Tourist activities.  He claims he will stop working and conduct tourist activities with his wife and child and then, after 3 months apply for a further permanent visa. 

19. He further claims that he has submitted an expression of interest to be invited to apply for a permanent visa and believes he will qualify for this invitation.  However he claims he is unable to apply for a permanent visa, onshore, while still on a bridging visa and therefore he will not be able to apply for a permanent visa unless he is granted this tourist visa.

20. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

    Consideration: 

21. 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)).

22. I acknowledge that since the visa applicant first arrived in Australia in August 2006 he has travelled overseas on 7 occasions.

23. The visa applicant returned to Australia on 04/06/2015 on a subclass 573 Higher Education Sector visa that ceased to have effect on 15/03/2016.  He was not granted a further visa (Bridging C visa) until 11/04/2016.  Technically this means that the visa applicant was unlawful during this period.  When I questioned the visa applicant about this period he said that he contacted the Department at this time and they told him that he could remain without a visa for up to 28 days while he prepared his next substantive visa application.  Furthermore, at this time the visa applicant was enrolled in his Honours degree and his supervisor was unable to determine his thesis project at that time.  In the absence of any contrary evidence I accept the visa applicant’s explanation of this anomaly in his Movement Details.    

24. There is no further information before me that indicates the visa applicant has failed to meet the conditions of his various past substantive and bridging visas.  

25. 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.

26. It is obvious to me that the visa applicant has always sought to comply with his visa conditions.  He was steadfast in his evidence that if this Tourist visa is granted he will cease work and conduct tourist activity with his family. 

27. However, by his own evidence, he does not intend to leave Australia after any tourist visa is granted and ceases to have effect.  He seeks to use this as a further opportunity to apply for another permanent visa.  I am satisfied that if the visa is granted the visa applicant will breach condition 8503 – by seeking to apply for a further permanent visa and condition 8531 by remaining in Australia after the end of the permitted stay.

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

29. The visa applicant’s registered migration agent made a verbal submission that the visa applicants are victims of the previous granting of student visas to cover the visa applicant’s gap period in his study.  Because the tourist visa was granted once as an interim measure to the visa applicants for this purpose, they then thought it would be granted again for the same purpose.  Because the visa applicant is now on a bridging visa he is unable to apply for a further permanent visa unless he goes offshore which is clearly something he does not want to do.

30. With respect to this review this argument is self-defeating.  The visa applicant wants to now be granted a tourist visa so he can then go on and apply for a permanent visa.  This motivation is not commensurate with a genuine intention to stay temporarily in Australia to conduct tourist activities.

31. In addition, since the visa applicant arrived in 2006, he has lived primarily in Australia.  The seven trips that the visa applicant has made overseas since this time; were all for around one month duration.  This means in the last 13 years he has spent more than 12 years in Australia and, in addition, he has not travelled overseas for almost 4 years.  This travel history is also not commensurate with the visa applicant genuinely intending to stay temporarily in Australia to conduct tourist activity.           

32. 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

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

    Ian Garnham
    Member