Nguyen (Migration) - [2025] ARTA 1473

NGUYEN (MIGRATION) [2025] ARTA 1473 (30 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Review Applicant:  Mrs Thi Ha Giang Nguyen
Visa Applicant:  Mrs Thi Thuy Tran
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2524717

Tribunal:General Member F Sneath
Place:Canberra
Date: 30 June 2025
Decision: The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration, in accordance with an order 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 30 June 2025 at 3:41pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – family medical conditions – caring responsibilities – property ownership in home country – outstanding legal proceedings in Vietnam – offer of a security bond – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 16 April 2025 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The visa applicant applied for the visa on 13 May 2025. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with several different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the applicant provided insufficient evidence of financial, employment and personal ties to satisfy the delegate of their strong incentive to depart Australia at the end of a temporary stay.
The review applicant appeared before the Tribunal on 19 June 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The visa applicant is a 57-year-old married woman from Vietnam who seeks the visa for the purposes of visiting her 32-year-old married daughter in Australia (the review applicant). The visa applicant wishes to visit for around one to two months to provide help to her daughter who runs her own business and cares for her young son who has very challenging medical conditions. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.
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)). There is no evidence of non-compliance with conditions of previously held visa, as the visa applicant has not previously travelled to Australia.
Intention to comply with visa conditions
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.
Evidence was provided that both the review and visa applicants are aware of the visa conditions and intend to comply. The review applicant submitted that the age, health, language ability, short duration and nature of the proposed stay were not conducive to the visa applicant breaching conditions 8010 and 8201 and advised that she was willing to pay a security bond as further evidence of intention that the visa applicant will comply with the visa conditions.
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
The Tribunal weighs the following factors in favour of the visa applicant having an incentive to depart Australia at the end of a temporary visit and as factors supporting her genuine intention to stay temporarily in Australia for the purpose for which the visa is granted:
a.Cultural family obligation of the visa applicant as the eldest daughter to be responsible for the ongoing care of her ill and aging mother. The visa applicant is not only the eldest child, she is also the only one who does not work full-time so she is best placed to provide most of the required care to her mother. The obligation on the visa applicant to provide care for her mother is also enhanced as the visa applicant was unable to provide any support to her family, and towards her mother, during a ten-year period when the visa applicant was in prison.
b.Strong family, social, cultural and religious ties in Vietnam. The visa applicant does not speak English. She has lived all her life in Vietnam. Although she has three daughters who are currently in Australia, her relationship with her mother and extended family, and social and cultural interests including her religious rituals, are grounded in Vietnam.
c.Shared property ownership with her husband of her residence in Vietnam, and the use and obligation to maintain an apartment in Vietnam owned by her daughter in Australia.
d.Access to regular health care. The visa applicant has regular access to health care in Vietnam to manage chronic conditions. This care is provided in her own language and familiar surroundings. She wishes to maintain that health care relationship which she finds suitable and accessible.
e.Outstanding court matters commenced by the visa applicant in Vietnam. The visa applicant has a significant outstanding civil debt in Vietnam (more than AUD $200,000) connected with criminal convictions for which the visa applicant has served a term of imprisonment. The review applicant informed the Tribunal that the visa applicant has lodged a statement of claim to address the remaining disputed civil debt and to seek recovery of assets claimed to have been unlawfully seized. The Tribunal gives the visa applicant’s outstanding legal action some weight as an incentive to return to Vietnam to deal with the matter. (However, see below at paragraph 13 d that the Tribunal weighs the current existence of such a large debt in Vietnam against the visa applicant as a factor against her intention to depart Australia at the end of a temporary visit, effectively balancing out the positive effect of this factor.)
f.The visa applicant’s desire to not jeopardise the future of her daughters through any non-compliance with Australian visa requirements.
g.Review applicant’s willingness to pay a security bond of up to $50,000 to demonstrate the visa applicant’s intention to comply with visa conditions.
The Tribunal weighs the following factors against the visa applicant’s intention to depart Australia at the end of a temporary visit:
a.The insecure nature of the visa applicant’s income in Vietnam, and the review applicant’s ability to financially provide for the visa applicant.
b.The ability of other family in Vietnam to care for the visa applicant’s mother.
c.The review applicant’s need for support to assist her care for her son with special needs and maintain the efficient running of her business, and the visa applicant’s ability to provide that support because she has no regular fixed employment or other significant commitments in Vietnam, so the visa applicant could stay in Australia to look after her grandchild and be with her daughters.
d.Existence of a large outstanding civil debt (more than AUD $200,000) against the visa applicant in Vietnam. The Tribunal notes the value of the debt and considers it an incentive not to return to Vietnam. However, the Tribunal also notes at paragraph 12 e that the visa applicant has lodged a statement of claim disputing the amount owed and seeking recovery of assets she claims were unlawfully seized, effectively balancing out the negative effect of this factor.
The Tribunal gives no weight to the following factors:
a.Previous visa compliance. There is no evidence of previous travel against which to assess visa compliance
b.Quality of health care. The Visa applicant suffers from some chronic conditions. Evidence was that she is satisfied with the standard of medical care she receives in Vietnam for her medical conditions.
The Tribunal made the review applicant aware of a s 357A Certificate on the Department file preventing disclosure of information. The information subject to the certificate was not considered relevant by the Tribunal. The Tribunal advised the applicant of the general nature of the type of information the Certificate prevented being disclosed and why it was not relevant to the decision of the Tribunal.
The Tribunal has weighed all relevant factors and 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.
The Tribunal notes the compelling compassionate circumstances for the visa applicant’s proposed visit, supported by medical evidence, is to support her daughter in managing her business and looking after the complex care needs of her son. There is strong evidence to support the legitimacy of the reason for the visa applicant’s proposed travel to Australia. However, the question before the Tribunal is whether the visa applicant genuinely intends to stay temporarily in Australia. As assurance as to the temporary nature of the proposed visit, the Tribunal notes that the review applicant is willing to pay a significant security bond of up to $50,000. In the circumstances of this case the Tribunal recommends the Department consider requiring payment of a security bond.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration, in accordance with an order 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.
Date(s) of hearing: 19 June 2025
Representative for the Applicant: N/A