Nguyen (Migration)

[2019] AATA 589

Nguyen (Migration) [2019] AATA 589 (20 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Be Nguyen

VISA APPLICANT:  Ms Thi Phuc Nguyen

CASE NUMBER:  1800417

HOME AFFAIRS REFERENCE(S):           BCC2017/4518655

MEMBER:Ian Garnham

DATE:20 February 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 20 February 2019 at 4:11pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine temporary entrant – visa applicant to assist review applicant with caring duties – brother arrived on visitor visa previously and remained in Australia – credibility issues – 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 21 December 2017 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 28 November 2017. 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 Sponsored Family 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 were not satisfied that the visa applicant genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 11 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Vietnam.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting her sisters. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

   cl.600.211(a)

10. 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.

11. In this case the 28yo visa applicant has no history of previous travel to Australia. 

12. However there has been significant travel to Australia by other family members.  In the visa application the visa applicant declared 2 sisters and one brother currently live in Australia.

13. The review applicant who is a 39yo sister of the visa applicant first came to Australia on 13/05/2003 on a subclass 309 offshore partner visa.  On 15/07/2004 she was granted a permanent subclass 100 visa and then became an Australian citizen on 14/06/2007.

14. A further 35yo sister of the applicants came to Australia as a visitor on a tourist visa in 2007.  She departed before her visa ceased to have effect.  She returned to Australia on subclass 309 offshore partner visa on 15/02/2012 and was granted a permanent subclass 100 visa on 28/05/2012. She then became an Australian citizen on 08/09/2016.

15. A 29yo brother of the applicants came to Australia on a subclass 600 tourist visa on 11/04/2017.  The visa ceased to have effect on 11/07/2017.  He has not departed Australia and on 28/06/2017 was granted a subclass 010 Bridging visa.      

16. At the hearing the review applicant also stated that the applicant’s mother has previously conducted compliant travel to Australia on multiple occasions.  Her Movement Details indicate that she has travelled to Australia on 4 occasions, in 2010, 2013, 2016 & 2017 on tourist visas.  On all occasions she departed Australia before the visas ceased to have effect and there is no evidence before me that she failed to comply with visa conditions.

    cl.600.211(b)

17. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject.  The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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.

18. The visa applicant is a qualified accountant and at the hearing said she currently works for a University and is on holidays at the present time.  When I asked her how she could take leave to come to Australia she said that she would ask for long term leave or that she may resign.  She said that she could resign because she is planning to help her fiancée with his new business.  She also said that they are planning to marry in August of this year.  I accept that these claims are true and consider that, if the visa applicant were to come to Australia as a visitor, it is unlikely that she would seek to work, train or seek a partner visa based on her current circumstances. 

19. I have considered the further two conditions (8503 & 8531) in conjunction with my consideration of other relevant matters below; as they relate to the further considerations that present as incentives for the visa applicant to remain in Australia after the permitted visa period, against the incentives for her to return to Vietnam after the visa period.

    cl.600.211(c)

20. The Tribunal has also considered all other relevant matters.

21. With the original application the visa applicant maintained that she wanted to assist the review applicant with the care of her children and also her pregnancy for her third child born on 30/02/2018.  At the hearing the visa applicant said that she still wishes to travel to Australia for a 3 month period to help the review applicant with caring for her now 3 children.  Before the hearing the review applicant provided evidence that showed her 8yo son was diagnosed with autism in 2014.[1]  At the hearing she also provided evidence that her 4yo son has also recently (December 2018) been diagnosed with autism.[2]  I also acknowledge that the review applicant has the sole care of her baby who she claims has a different father to her two sons and that she is no longer in contact with him.  The review applicant also stated that the father of her two sons only has irregular contact with the two boys and although he does not pay child support he does contribute some money and toys for their benefit.  However I also acknowledge that both of the medical assessments of the children, cited above, recognise the father as a caregiver of both children.  I also recognise that the review applicant already has significant family members present in Australia (a sister, brother and two cousins) to assist with her caring duties.  Nevertheless, the review applicant said that she does not work and I acknowledge the significant caring duties that are presented by caring for her children.   

    [1] At FF: 18-27 (AAT)

    [2] At FF: 46-49 (AAT)

22. The applicants said that, in Vietnam, the review applicant lives with their mother and another brother who is 35yo and paralysed due to an assault many years ago.  When I asked the visa applicant who would care for her paralysed brother if she were to come to Australia for a period she said that her sister in law who lives nearby would be able to assist their mother with his care.

23. I asked the review applicant whether her brother who is currently in Australia (whose circumstances are described at paragraph 15) had applied for a protection visa and she said that she did not know under what circumstances he has remained in Australia but that he may have applied for a protection visa.  I cannot accept that the review applicant would be unaware of her brother’s circumstances when he has overstayed a visitor visa and she is seeking to sponsor a further family member for the same type of visa.  The review applicant’s evidence on this point has diminished the weight of all of the evidence she has provided.

24. In addition, the fact that visa applicant’s brother has currently overstayed a visitor visa means that a further family member of the applicants is currently in Australia.  They also arrived here under the same circumstances by which the visa applicant seeks to arrive.  These facts provided extra incentive for the visa applicant to remain in Australia beyond the visa period and create significant doubts as to whether she genuinely intends to visit on a temporary basis.   

25. 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

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

    Ian Garnham
    Member