Nguyen (Migration) - [2025] ARTA 396

Nguyen (Migration) [2025] ARTA 396 (28 March 2025)
DECISION RECORD
Applicants:Mr Anh Khoa Nguyen
Mrs Thi Kim Loan Nguyen
Mr Van Hoang Nguyen
Respondent: Minister for Home Affairs
Tribunal Number: 2302388
Tribunal:General Member S Hoffman
Place:Perth
Date:28 March 2025
DECISION:The Tribunal has no jurisdiction in relation to the applications for review by Mrs Thi Kim Loan Nguyen and Mr Van Hoang Nguyen
The Tribunal affirms the decision not to grant Mr Anh Khoa Nguyen a Business Skills (Provisional) (Class EB) visa.

Statement made on 28 March 2025 at 10:44am
CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – significant investor scheme – funds unencumbered and lawfully acquired – primary applicant and husband not in Australia when visa and review applications made – no jurisdiction to review – secondary applicant son does not satisfy member of family unit criteria – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347(1)(a), 347A(2)
Migration Regulations 1994 (Cth), Schedule 2, cls 188.252, 188.311
STATEMENT OF REASONS
APPLICATION FOR REVIEW
The Tribunal

On 21 February 2023, the applicants lodged an application for review of a decision made by a delegate of the Minister for Immigration. The application was lodged with the Administrative Appeals Tribunal (AAT).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The decision under review
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 February 2023 to refuse to grant the applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 19 February 2020. Class EB contains Subclass 188 (Business Innovation and Investment (Provisional)). The criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are set out in Part 188 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. The primary criteria include common criteria, and criteria set out in streams. In this case, the first named visa applicant (‘the applicant’) applied for the visa in the Significant Investor stream.
The delegate in this case refused to grant the visas on the basis that the primary applicant did not satisfy the requirements of cl 188.252 of Schedule 2 to the Regulations because the delegate was not satisfied that all the funds nominated with regard to the Complying Significant Investment (CSI) were unencumbered and lawfully required.
Does the Tribunal have the jurisdiction to review the decision to refuse the visas for the three applicants?
In the covering letter to their decision, the delegate stated that there were no review rights for Ms Thi Kim Loan Nguyen (the primary applicant) and her husband Mr Van Hoang Nguyen. The Tribunal will refer to these applicants as the parents, given the three applicants have the same family name.
According to movement records held by the Department, the parents left Australia on 16 September 2019 and next arrived in Australia on 8 December 2022. They then left on 16 December 2022 and returned on 21 September 2023.
Based on the movement records, the parents were not in Australia when the visa application was lodged on 19 February 2020 or when the application for review to the Tribunal was made 21 February 2023. Not being in Australia on either of these dates is sufficient for the Tribunal to not have the jurisdiction to review the refusal decisions. This is in accordance with s 338(2), s 347A(1)(a) and s 347A(2) of the Act.
The third applicant, Mr Anh Khoa Nguyen (the son), was in Australia at the relevant dates and therefore the Tribunal does have the jurisdiction to review the refusal decision made in his case.
Hearing
The applicants appeared before the Tribunal on 27 March 2025 to give evidence and present arguments. Also present was the primary applicant’s sister, Ms Thi Ngoc Lan Nguyen and the representative, Mr Nguyen Thanh Long Phan.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed in relation to Mr Mr Anh Khoa Nguyen.
CONSIDERATION OF CLAIMS AND EVIDENCE
The son, Mr Nguyen is seeking is seeking to satisfy cl 188.311 which reads as follows:
The applicant is a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa (the primary applicant).
As already recorded, the primary applicant in this matter is Mrs Thi Kim Loan Nguyen, Mr Nguyen’s mother. The Department refused Mrs Nguyen’s application for a Subclass 188 visa. As already set out, the Tribunal has no jurisdiction to review that refusal decision.
As the primary applicant does not hold a Subclass 188 visa, then a member of her family unit, such as Mr Anh Khoa Nguyen, does not satisfy cl 188.311.
As cl 188.311 is not satisfied, the criteria for grant of a Business Innovation and Investment (Provisional)(Subclass 188) visa is not satisfied.
The Tribunal can only affirm the decision under review.
The primary applicant and her son spoke about, from their perspective, the unfairness of the departmental decision and the process that ensued, and the impact this has had on the family.
The delegate in their decision stated that they were not satisfied with information Mrs Nguyen provided regarding a loan she claimed she had made to her sister. The delegate wrote that they were not satisfied these funds were unencumbered or lawfully acquired, largely because these funds were given to her sister in cash.
Mrs Nguyen said that she lent a small amount of money to her sister compared to the overall investment and in Vietnam, the culture is to give cash rather than transfer funds via a bank. She said that she provided paperwork to the Department, but it was found that the loan to her sister was not legitimate which resulted in the application being refused. That causes her to feel sad. She has already invested her money in Australia and now does not know what to do. Her money and the loan to her sister was legitimate with certified documents. She asked that the Tribunal reconsider the decision. She said that if the negative decision is not reviewed, she feels that she has been wrongly judged and has not been given the opportunity to explain. It feels like an unjust process.
Mr Nguyen said that he and his family have waited for a few years for the opportunity to have their say and share their story and what they have been through in the last few years.
Mr Nguyen said he came to Australia when he was 12 years old to pursue a better education. His family decided to invest in Australia. When his visa was refused in year 11 or 12, that really affected his academic progress in year 12. But he faced that and went through year 12 and went to university.
Mr Nguyen said that he only heard about the hearing about a month ago, and he was looking forward to having a better opportunity and a better result. He has been dealing with this for a few years. He said that this issue has put his family through a hard time, here in Australia and in Vietnam. All the family money was used for the investment opportunity associated with the visa. Because of the effect of COVID-19 and inflation, and exchange rates, they lost money. The delegate’s decision was unfair to the family as the funds were lawful and that was verified by their government institutions. What they did was common in Vietnamese culture. If the case stops here, that is very disappointing for the family.
The Tribunal had explained during the hearing the issues around review rights, jurisdiction and the criterion for granting a visa to a member of the family unit of the primary applicant. The Tribunal observes that the representative advised that he had informed the family of these.
The Tribunal is not unsympathetic to the applicant’s situation, in particular Mr Anh Khoa Nguyen’s. It acknowledges their disappointment with the outcome of the hearing. However, it can only apply the legislation and has no discretion in this matter.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are not met. Accordingly, the decision under review must be affirmed in relation to Mr Anh Khoa Nguyen.
DECISION
The Tribunal has no jurisdiction in relation to the applications for review by Mrs Thi Kim Loan Nguyen and Mr Van Hoang Nguyen
The Tribunal affirms the decision not to grant Mr Anh Khoa Nguyen a Business Skills (Provisional) (Class EB) visa.
Date of hearing: 27 March 2025
Representative for the Applicant: Mr Nguyen Thanh Long Phan (MARN: 1677976)