NGUYEN (Migration)

[2017] AATA 1837

NGUYEN (Migration) [2017] AATA 1837 (22 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr THAT DINH NGUYEN

VISA APPLICANT:  Mr DINH THA NGUYEN

CASE NUMBER:  1703656

DIBP REFERENCE(S):  BCC2017/93348

MEMBER:Tania Flood

DATE:22 September 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.

Statement made on 22 September 2017 at 2:57pm

CATCHWORDS

Migration – Visitor (Class FA) visa ­ Subclass 600 – Genuine Temporary Entrant – Sole Custodian of son in Vietnam – No adverse migration history – Family ties – Employment and business commitments – Willingness to pay security bond

LEGISLATION

Migrations Act 1958, s 65

Migration Regulations 1994, Schedule 2 cl.600.211, cl.600.231.

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 10 February 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 January 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 evidence did not support that he genuinely intends to visit Australia temporarily.

5. The review applicant appeared before the Tribunal on 22 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas by telephone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   BACKGROUND

7. The review applicant is an Australian citizen.  He is married with two children.  He works as a Research Assistant at the University of Technology and runs a small dry-cleaning business with his wife. 

8. The visa applicant is a thirty-three year old divorcee with one son.  He has worked in a Technician role since January 2015.

9. The review and visa applicants have another brother who is an Australian citizen and who works as a Primary School Teacher in Melbourne. A fourth brother resides in Vietnam along with their parents.

10. The visa applicant would like to visit his brothers and their families.

    TRIBUNAL HEARING

11. The review and visa applicants provided the Tribunal with consistent and credible evidence which is summarised as follows:

12. The visa applicant wants to visit Australia for up to three months to spend time with his brothers and their families.  The original intention was that he would travel to Australia with his mother but she was granted a visa earlier in the year and has already come and gone from the country.  His mother has twice visited Australia.  She has no immediate plans to return because she has some health issues.

13. The visa applicant has not previously visited Australia. He has travelled to Myanmar in the past when his brother was living there.

14. The visa applicant is employed in a Technician role with a private company.  He has worked for the same company at different points in time with his latest employment commencing in 2015.   He has secured permission from his employer to visit Australia while retaining his job on return.

15. The visa applicant reports no problems living in Vietnam and will return home after the visit because he has full-time custody of his eight year old son as ordered by the courts.  He and his son live with his parents who also rely on him for support.  His parents will care for his son while he is away.

16. The review applicant has previously sponsored his mother and his parents-in-law to visit Australia.  He is willing and able to pay a security bond to facilitate the grant of the visa.

17. The review applicant works and his wife runs their own business.  They are in a position to support the travel and living expenses of the visa applicant during his stay in Australia.  The visa applicant also has some savings.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

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

20. 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)).

21. The Tribunal has considered the movement records of the review applicant, his mother and Australian-based brother and finds there is no adverse migration history to consider.  The visa applicant has never visited Australia.

22. 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.

23. The review applicant has stated that he will pay for the travel and living costs of his brother for the duration of his proposed visit.  He has produced copies of his and his wife’s bank statements which indicate they are in a position to do so.  Furthermore, the visa applicant has produced proof of his employment in Vietnam and claims to have some personal savings of his own.  The Tribunal is satisfied the visa applicant will reside with the applicant or his Melbourne based brother for the duration of his visit.  The Tribunal is satisfied that the visa applicant will not, and has no need to work in Australia for the length of his visit.   On his oral evidence the Tribunal is also satisfied he does not intend to, and will not, engage in study or training for the period of his visit.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if he is granted a visa.

24. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether she genuinely intends to stay temporarily in Australia.

25. The Delegate was concerned about the visa applicant’s lack of dependent family in Vietnam but it has since come to light that he is the sole custodian of his young (eight year old) son in Vietnam following the finalisation of court proceedings.  Furthermore, the visa applicant and his son reside with the parents and enjoy a close relationship with the elder brother who lives nearby with his own family.  While the Tribunal acknowledges the visa applicant has two brothers living in Australia it considers his family ties in Vietnam, including a dependent son for whom he has sole custody, provide a strong incentive for him to return home when his visa ceases.

26. The Delegates decision draws attention to the fact the visa applicant was unemployed when his previous application for a Visitor visa was refused on 21 January 2015.  The Delegate placed little weight on the visa applicant’s current employment which was taken to have commenced a relatively short time ago.  Having had the benefit of interviewing the review and visa applicants and considering the documentary evidence before it, the Tribunal now understands and accepts that the visa applicant’s employment with his current employer has been interrupted and although his current contract commenced in 2015 he has eight years of service with this company in total.  The Tribunal accepts the visa applicant has obtained permission from his employer to be away from his position for up to three months with a view to resuming his position on return.  In view of his responsibilities to his son the Tribunal considers the visa applicant’s employment also provides an incentive for him to return home when his visa ceases.

27. The Tribunal has considered the proposed length of the visit, up to three months, and considers it reasonable in the circumstances and not indicative of any intention to remain in Australia beyond the length of his visa.  In forming this view the Tribunal has had regard to the fact the visa applicant has two brothers living in separate states of Australia and who have young children whom the visa applicant has never met.  The Tribunal considers it reasonable for the visa applicant to want to spend time in locations, getting to know his relatives and visiting the tourist attractions in both locations.

28. The Tribunal has also placed weight on the fact that the review applicant’s mother and parents-in-law have previously visited Australia on Visitor visas and returned home to Vietnam afterwards.  Also the Tribunal has placed weight on the review applicant’s willingness, and ability, to pay a security bond to ensure compliance by the visa applicant with any visitor visa conditions. 

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

30. 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

31. 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.

    Tania Flood
    Member