Nguyen (Migration)

[2018] AATA 2730

Nguyen (Migration) [2018] AATA 2730 (25 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ngoc Thanh Thanh Nguyen

VISA APPLICANT:  Ms Ngoc Thanh Vy Nguyen

CASE NUMBER:  1702163

DIBP REFERENCE(S):  02105946

MEMBER:Ian Garnham

DATE:25 July 2018

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 July 2018 at 4:09pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream - Whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted – History of compliance with visa conditions – Incentives to return to home country – Cogent reasons for visit – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, 600.611, Schedule 8, Conditions 8101, 8201, 8503, 8531

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 9 December 2016 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 30 March 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 they were not satisfied that the visa applicant genuinely intended to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 8 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from; her sister, the visa applicant.

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

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In the present case, the visa applicant seeks the visa for the purposes of visiting family members.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

11. 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)).

12. The review applicant is 39yo and came to Australia to live on a carer subclass 116 visa on 08/08/2011 to care for her maternal grandmother.  Her grandmother died in 2012 and she now lives with her 3 children and aunty in Springvale.  When the review applicant has completed her community corrections order and re-established her businesses and relationships with her children she hopes to begin living with her boyfriend and her children in his 3 bedroom house.

13. The visa applicant is 36yo and has travelled to Australia on 5 previous occasions to visit family members.  She travelled in 2012, 2013, 2014, and twice in 2015.  On 3 of those trips she also travelled with her daughter.  The visa applicant also said that on the first two of these trips in 2012 and 2013 she also travelled with her ex-husband but that they divorced after the 2013 trip.  In late 2015 she travelled alone with her daughter who is now 7 years old.  The review applicant said that on a number of these trips her mother has also travelled with her and her mother has also travelled to Australia many times and is currently visiting Australia assisting her.

14. There is no information before the tribunal to suggest that in all of these trips that the visa applicant or the applicants’ mother have failed to comply with the conditions of any of the numerous visas they have held.      

15. 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.

16. The delegate was concerned that the visa applicant is unemployed and without demonstrable assets in Vietnam.  The visa applicant provided evidence of savings of approximately $3,000 USD[1] that the delegate was also not convinced they would have access to In Australia.  I see no reason why the visa applicant would not have access to these funds as she said she has and in any event she family support from her aunty and sister (as stated in her application) to provide for her as a visitor in Australia.

    [1] At F: 40 (AAT)

17. I also consider the visa applicant’s previous numerous compliant trips to Australia provide strong evidence that the visa applicant will again comply with the above conditions of the visa if it is granted.  

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

19. The delegate was also concerned that the visa applicant was seeking to again come to Australia with her daughter.  I note that the original application included her daughter’s details as an extra family member intending to travel with her.  However, I also note that neither the delegate’s reasons nor the application for review to this tribunal include consideration of her daughter’s application.  This indicates a separate application was not made for the visa applicant’s daughter, on this occasion, as is required by the legislation. For this reason, with respect to this application, the visa applicant’s daughter remaining in Vietnam provides further incentive for the visa applicant to return there.

20. The review applicant explained that following a period of incarceration her businesses have suffered and she now has to devote most of her time to re-establishing them and rebuilding her relationship with her children who have further bonded with their aunty during this period.  The visa applicant said that her mother has been helping her with these processes and her sister coming for a period here will allow her mother to return to Vietnam to attend to health matters.

21. I am satisfied that the applicants are members of a close knit family and based on her previous travel it is likely that the visa applicant genuinely seeks to travel to Australia for a limited period to assist her sister following a difficult period of incarceration.  

22. 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

23. 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.

    Ian Garnham
    Member