Nguyen (Migration)

[2018] AATA 5484

Nguyen (Migration) [2018] AATA 5484 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Nghia Van Nguyen

VISA APPLICANT:  Mr Duc Hien Tran

CASE NUMBER:  1722062

HOME AFFAIRS REFERENCE(S):           BCC2017/2251772

MEMBER:Mary Urquhart

DATE:29 October 2018

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 October 2018 at 3:41pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visa) – Sponsored Family stream – Visiting family members – Genuine intention to stay temporarily – applicant has a large extended well-settled family in Australia – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 July 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 23 June 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 meetcl.600.211, because the delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 29 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mr Duc Hien Tran by telephone from Vietnam.

6. For the following reasons, the Tribunal has concluded that the 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 family, in particular his uncle, the review applicant. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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)). The applicant has previously travelled to Australia on a number of occasions. He held a student visa from 2009 until 2012. He travelled again to Australia in 2013. The applicant returned to Australia in 2013 for his graduation ceremony at the Chadstone campus. There is evidence that in 2013 the applicant made application for his wife and son to visit with him. The application for his wife and child was refused. The Tribunal takes the evidence into account however finds there is no evidence of any breach of visa conditions and cl.600.211 (a) is satisfied.

10. 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.600.612):

    ·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.

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

12. There is no information before the Tribunal to suggest that the visa applicant would engage in any study or training in Australia. Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa condition 8201.

13. The Tribunal considers the likelihood that the visa applicant will comply with the other conditions depends on the strength of his incentives to return to Vietnam balanced against the strength of incentives to seek to remain in Australia. After considering all the evidence the Tribunal concludes that on balance, the incentive Mr. Tran would have to remain in Australia is significantly greater than the incentive he would have to return to Vietnam.

14. The applicant is a 34 year old married man He is a national of Vietnam. He has one son aged 6. The evidence is that he resides with his wife and son and with his parents in Vietnam. He wishes to visit Australia for 2 months.

15. The review applicant, Dr Nguyen, aged 64 is a single man and an Australian citizen by grant. He said he first came to Australia in 1992/93 visa on a “Permanent residence visa”. The review applicant gave evidence that he studied Medicine in Vietnam before coming to Australia.  He then undertook the Australian Medical Examinations in 1996. He works in a clinic in Springvale which he owns and where he is a sole practitioner.

16. The Tribunal notes the visa applicant is of working age and has considered whether his employment in Vietnam represents an inducement for him to return home or whether he may be tempted to remain and seek better paid work in Australia if granted a visa. .

17. The applicant claims in his application to have been self-employed in his own shop for the last two years; his evidence at the hearing is that he has now had the shop for some 4 years. He sells garments. He said he earns the equivalent of $300 AUD a week. The evidence is that he works in the shop with his wife and that she will look after the shop if he is granted a visa for Australia.

18. Whilst supporting financial documentation was submitted in relation to the review applicant’s ability to offer financial assistance to the applicant the only supporting documentation regarding the applicant’s business is a copy of a translation of a document purporting to be a certificate of registration of a private business. The document indicates the business was first registered 24 February 2016. It states the business is selling ready-made garments. It lists “the full name of individual or representative of the household” as the applicant. It states the Business capital as 10 million Vietnamese Dong. It indicates he contributed capital to form the business. It claims to be authorized by the Chairman Chief of Economic Bureau. The Tribunal notes the business capital converts to approximately $604 AUD.

19. A copy of a document headed certificate of tax registration has also been submitted dated May 2017.Hiowever, there is no reliable evidence of regular income, or of savings or a history of savings. On the evidence the Tribunal is unable to be satisfied that the applicant’s claimed self-employment represents an inducement for him to return home.

20. The Tribunal notes the review applicant claims he will provide full financial assistance to the applicant. He has sufficient funds to support this. However, given the review applicant’s history of regular travel outside Australia the Tribunal raised concerns with him as to whether he would be present in Australia if the applicant, who he is sponsoring and claiming to provide for, were granted a visa to visit. Dr Nguyen responded saying once he knew the dates the applicant could come; he would make sure he would be here.

21. Whilst the evidence is that the applicant’s wife would run their shop in his absence the Tribunal is not satisfied that the applicant has sufficient funds to provide for himself on any visit and that there are sufficient funds to maintain his wife and son in Vietnam during any visit.

22. The Tribunal has considered the strength of the applicant’s family ties in Vietnam against those to family in Australia. The applicant and review applicant clearly have a strong bond. Both the review applicant and visa applicant gave evidence that the visa applicant lived with the review applicant for the 4 years he studied in Australia commencing in 2009 and finishing in 2012.  As well the applicant has close and extended family in Australia including 4 uncles; 3 live in Melbourne and I in Sydney. As well he has 1 aunt who is usually resident in Australia. Whilst the evidence at the hearing is that the applicant’s aunt from Melbourne and uncle from Sydney are currently in Vietnam, the fact is that the applicant has a large extended family in Australia who are well settled and able to support him and who may present a temptation to him remain here if granted a visa.

23. As well the Tribunal notes the applicant’s wife and son are living with his parents which is considered a cultural norm in Vietnam. Whilst family at home would usually represent an inducement to return, particularly a spouse and only son, the Tribunal formed the view that the applicant’s  family in Australia  may provide a strong incentive for the applicant to remain and to develop immigration pathways for the family at home to come to Australia. In making this finding the Tribunal notes the applicant’s wife and son were refused visas when the applicant came in 2013.

24. Of significant concern in this application are the reasons given for the applicant wishing to visit including his particular wish to visit his uncle the review applicant.

25. The review applicant’s movement records indicate that in 2018 alone, he has travelled out of Australia on what may be described as a regular basis. That is monthly from February to October. His trips are for approximately 10-11 days. Due to the applicant particularly wishes to visit his uncle; the Tribunal questioned the review applicant about his regular travel history.  Whilst the review applicant claims to have visited Spain and Paris for about 5 days each on different trips this year, his evidence is that he always transits through Vietnam. As well he gave evidence that the majority of his trips were to Vietnam. In response to questioning he said he is not working in Vietnam.  He admitted to catching up with the visa applicant most recently this month and as well on the other trips he has taken this year. He said he has stayed with the applicant and his family during his trips. The Tribunal gives weight to this evidence in considering the purpose and duration of the proposed trip.

26. The applicant spent some 5 years in Australia studying hospitality at Holmesglen “university”. He said he has a Certificate in Hospitality. During this time he lived with his uncle, the review applicant. The Tribunal notes the evidence given by the review applicant which is that the applicant obtained a “Bachelor of Business” whilst studying in Australia. Given the applicant lived with his uncle for 4 years the Tribunal would expect he would know what was studied and at what level. The Tribunal has concerns the review applicant was exaggerating the applicant’s educational achievements in Australia.

27. Asked if he had ever worked using his hospitality qualifications the applicant replied that he did some cleaning for his uncle, the review applicant, when he was living in Australia.

28. Both the review applicant and the applicant gave evidence of plans for the proposed visit. The review applicant explained that as the applicant was studying when he lived in Australia he did not have time to visit places of interest. As well he said the applicant’s hobby is photography and that the applicant wishes to photograph Australia. Asked about his hobby the applicant said he had taken up photography this year. Asked what parts of Australia he wished to visit he responded vaguely Sydney, Melbourne, the place where the government is, the coast and Phillip Island. The Tribunal finds his evidence was vague and unconvincing. The review applicant commented that he thought his nephew was nervous giving his evidence. The Tribunal notes the comment. However, the Tribunal formed the view that the applicant, from responses to other questions, was able to understand the Tribunal, the proceedings and the questions and responded in an appropriate if limited manner regardless of any nervousness.

29. The Tribunal finds the evidence of regular and recent time the applicant spent with the review applicant and other family visiting Vietnam weakens the strength of the applicant’s claim to wish to spend time visiting his uncle and other family in Australia. The applicant’s hobby of photography is recent. His plans for Australia vague. For these reasons the Tribunal finds the claimed purpose of the applicant’s proposed visit is unconvincing and raises the possibility his purpose may be other than that which is claimed.

30. The review applicant claimed it was not the case that the applicant would seek to remain in Australia. He referred the Tribunal to earlier sponsorships he has made for his siblings and for the visa applicant and to evidence that those he sponsored returned home within the visa periods. The Tribunal has carefully considered this evidence.

31. The review applicant said he would ensure his nephew returned to Vietnam before the expiry of any visitor visa that may be granted. He said he is prepared to pay a Bond to guarantee this. As well the Tribunal notes and takes into consideration the evidence that the review applicant does not wish to jeopardize any future sponsored visitor visa applications for other members of their large extended family and would ensure the applicant returns home on this basis. The Tribunal has carefully considered this evidence. However, with many members of the family having the option to sponsor, the Tribunal has concerns that any such determent may not be so great. 

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.

    Mary Urquhart
    Member