Nguyen (Migration)

[2019] AATA 1817

Nguyen (Migration) [2019] AATA 1817 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ngoc Tram Anh Nguyen

VISA APPLICANT:  Mr Viet Bao Nguyen

CASE NUMBER:  1903806

HOME AFFAIRS REFERENCE(S):           BCC2019/307940

MEMBER:Nora Lamont

DATE:25 March 2019

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 25 March 2019 at 7:33am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – visiting family members– genuine intention to stay temporarily – applicant applied for an offshore partner visa – financial resources – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 18 February 2019 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 February 2019. 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 delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.

5. The evidence before the Tribunal was sufficiently persuasive combined with the significance of the circumstances underpinning the application that the Tribunal has been able to proceed on the decision on the papers.

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

   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 family, caring for his wife and newborn child. 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 applicant has not travelled to Australia before but he did travel to Singapore and Malaysia in 2103. There is no evidence before the Tribunal that the applicant did anything but complied with his visa conditions on this trip. The Tribunal also places weight in the applicant’s favour because the Tribunal has no information that the applicant did anything other than adhere to the conditions of his visas. Therefore, the Tribunal is satisfied the applicant will abide by the conditions on his visa.

11. 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):

    ·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.

12. The applicant wants to come to Australia to support his wife and be with her and their newborn baby. The applicant has the financial resources as detailed in his banl account details[1] and a position to return to in Vietnam. Given the circumstances of the applicant the Tribunal is satisfied the applicant does not intend to work in Australia or study during his time here. He has also applied for an offshore partner visa and the Tribunal is satisfied that the applicant will return to Vietnam.

    [1] Department Folio page 57 & AAT Folio page 39

13. The Tribunal has also considered all other relevant matters (cl.600.211c). The Tribunal has regard to Migration Regulation 4.23:

    Expedited review (close family visit visas)

    (1)  This regulation applies to review of a decision to refuse to grant a Sponsored (Visitor) (Class UL) visa, a Tourist (Class TR) visa or a Subclass 600 (Visitor) visa if and only if:

    (a)  the applicant stated in his or her application that he or she intended to visit Australia, or remain in Australia as a visitor, for the purposes of visiting an Australian citizen or an Australian permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the applicant; and

    (b)  that application was made to allow the applicant to participate in an event of special family significance in which he or she is directly concerned; and

    (c)  the applicant identified the event and the applicant's concern in that application; and

    (d)  that application was refused because either:

    (i)  the Minister was not satisfied that the expressed intention of the applicant only to visit Australia was genuine; or

    (ii)  the applicant did not satisfy public interest criterion 4011; and

    (e)  the application was made long enough before the event to allow for review by the Tribunal if the application were refused.

    (3)  The decision must be reviewed immediately by the Tribunal on receipt of an application for review of the decision.

    (4)  The Tribunal must give notice to the applicant of its decision in respect of an application for review as soon as practicable.

14. The Tribunal is satisfied that the application is genuine and for an important family event, mainly the birth of the applicant’s child. Therefore the Tribunal has expedited this application. Given the circumstances, any efforts the Department may make in expediting this case would be appreciated. 

15. 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

16. 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.

    Nora Lamont
    Member