Nguyen (Migration)

[2017] AATA 2040

Nguyen (Migration) [2017] AATA 2040 (25 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Nhu Quynh Nguyen

VISA APPLICANT:  Mr Hieu Trung Nguyen

CASE NUMBER:  1708600

DIBP REFERENCE(S):  BCC2017/1273550

MEMBER:Meena Sripathy

DATE:25 October 2017

PLACE OF DECISION:  Sydney

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 and

·cl.600.212 of Schedule 2 to the Regulations.

Statement made on 25 October 2017 at 12:46pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Genuine visitor – Visa Applicant currently studying in Finland on a scholarship – Large extended family in Vietnam – Opportunity to meet new family members in Australia

LEGISLATION

Migration Act 1958, ss 65, 360(2)(a)

Migration Regulations 1994, Schedule 2 cls 600.211, 600.212

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 April 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 4 April 2017. 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 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 the delegate was not satisfied that the applicant intended to only visit Australia temporarily.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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 his sisters and their families in Australia. 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 visa applicant has not travelled to Australia previously so he has no personal migration history for the Tribunal to consider. 

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. Evidence has been provided that the visa applicant is presently studying in Finland in a full time 4 year Bachelor of Business Administration, Business Management course.  He has provided evidence of acceptance in to the course, 12 month residency permit and evidence of completion of the first semester. Information provided by the review applicant to the Tribunal explains that his tuition fees are covered by a scholarship and he is fully committed to complete this course.  She explains that his residence permit in Finland is granted year by year, on the basis of completing study each year and he has applied to renew his permit in November.  On this basis the Tribunal is satisfied that the applicant is not likely to engage in work or study in Australia and is likely to depart Australia at the end of his permitted stay to continue his study in Finland.

12. The Tribunal has also considered all other relevant matters (cl.600.211(c)). Information before the Tribunal indicates the visa applicant has parents, three siblings and a large extended family in Vietnam.  He has 3 siblings in Australia, including the review applicant, a sister, Tien Nguyen, whom he has not seen since she left Vietnam in 2003 and a brother who is presently studying Accounting at Griffith University.  As mentioned above, the visa applicant has commenced a Bachelor’s course in Finland, having obtained a scholarship covering his fees. Given the strong family ties in Vietnam and continuing study commitments in Finland, the Tribunal is satisfied the visa applicant has strong inducements to depart Australia at the end of his permitted stay.  The Tribunal has also considered and accepts the review applicant’s submissions that the visa applicant has no intention or incentive to reside in Australia and that he is committed to and values his study commitment in Finland to which he will return, and she is prepared to assist him to invest in Vietnam in future. 

13. The Tribunal considered the migration history of the review applicant and other relatives in Australia and finds there is nothing adverse in any of their migration histories which may suggest the visa applicant will not comply with conditions.  The review applicant and her sister in Australia both came to Australia as students and lawfully obtained permanent visas under the skilled migration program, their brother in Australia is the holder of a current student visa. The review applicant also provided information that another sister and her parents previously made compliant visits to Australia (which, although not able to be verified by the Tribunal from Department records, given the accuracy of other information she has provided, the Tribunal is prepared to accept).

14. Satisfactory and adequate evidence has also been provided of the review applicant’s financial circumstances and on this basis the Tribunal is satisfied the visa applicant has access to adequate funds for the period of the stay.

15. Having regard to all of the above and the review applicant’s desire for the visa applicant to attend her wedding reception and meet her husband, and also to reunite with his sister whom he has not seen in many years and whose children he has yet to meet, the Tribunal finds there are compelling and compassionate family reunion reasons for his visit. 

16. 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.  It is also satisfied that cl.600.212, relating to adequate funds or access to adequate funds for the period of stay, is met. 

    DECISION

17. 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; and

    ·cl.600.212 of Schedule 2 to the Regulations.

    Meena Sripathy
    Member