NGUYEN (Migration) - [2024] ARTA 69

DECISION AND
REASONS FOR DECISION
NGUYEN (Migration) [2024] ARTA 69 (31 October 2024)
Applicant:Ms Thi Thu Hoan NGUYEN

Visa Applicant:  Ms Thi Thu Hien NGUYEN
Respondent:  Minister for Home Affairs
Tribunal Number:  2312362

Tribunal:Senior Member M Sripathy
Place:Sydney
Date: 31 October 2024
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 31 October 2024 at 12:37pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant and compliance with conditions – visiting sister – applicants’ respective family, employment, finances and travel histories, including review applicant’s recent travel to home country – mother currently visiting Australia – application made under tourist stream instead of sponsored family stream – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600,221, 600.222
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2023 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 19 June 2023. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist 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 delegate was not satisfied the applicant’s incentives to depart Australia outweigh their incentives to remain in Australia and therefore the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia and does not meet cl.600.211.
The review applicant appeared before the Tribunal on 25 October 2024 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 English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The applicant is a 47-year-old married woman from Vietnam. She provides details of non-accompanying family members in Vietnam, including a partner and adult child. She seeks the visa for a period of three months to visit her sister in Australia who is an Australian permanent resident. The visa applicant indicates she is self employed and has a personal household business since 2008. She states she has never held a visa for Australia or any other country and has never had a visa for Australia or any other country refused. In support of the application the visa applicant submitted various documents including title deeds for property held in her name, household registration booklet, demonstrating her family composition in Vietnam; passport; business licence/registration; visa applicant’s bank statement demonstrating financial circumstances; documents relating to Australian resident sister including birth certificate, demonstrating relationship with visa applicant, invitation letter, Medicare card and passport. In her invitation letter the visa applicant’s sister invites her sister to visit for two weeks as it has been four years since they have seen each other. She is busy with her business and was unable to visit Vietnam.
Evidence before the Tribunal
Following refusal of the application by the delegate, the visa applicant’s sister, named in the application (the review applicant), applied for review of the decision on 16 August 2023.
Accompanying the review application she provided a signed statement, and supporting documents, providing further details about the visa applicant’s circumstances. She declares that the visa applicant is married and has a son born in 1997. She is self employed with a tailoring business since 2000 which has grown significantly and she has had a shop since 2008. She employs her husband and son. Details of her revenue and income, and property ownership are provided. The review applicant also provides details of her own circumstances in Australia, and close relationship with her sister. She provides information and evidence that her sister lent her money to purchase her first home in Australia. She is well off financially in Vietnam and has no reason to leave her assets, husband and son to remain in Australia.
On 11 October 2024, the review applicant submitted further documents, including updated bank statement for the period July to October 2024 of the visa applicant showing her available balance as at October 2024 and current tax payments made by the visa applicant in Vietnam.
On 25 October 2024 the Tribunal received a Change of Name Certificate for the review applicant and a copy of her current Australian passport.
Tribunal hearing
The Tribunal took evidence from the review and visa applicants at hearing. It asked each of them about their current circumstances, reasons for the visa applicant’s visit now, and raised issues arising from the material. The applicants’ evidence was broadly consistent with each other’s and with the documentation provided. A summary of relevant evidence obtained follows.
Review applicant
The review applicant confirmed her address where she lives with her two children aged, a daughter aged 25 and son, 21 years. Her daughter has a child who is just over one year old. The review applicant said her husband passed away last year from cancer. She looked after him until he died. The review applicant has her own nail and beauty business. She has around 10 employees.
The Tribunal asked about the purpose of the visa applicant’s visit now given that, since the application was made, they have seen each other. The review applicant confirmed that she has recently been in Vietnam. She travelled there for a surgery procedure and travelled again after a month. Her sister looked after her while she was there. When asked why she went there for surgery instead of having it here she said it was for two reasons, the first was her sister could look after her and the second was there was a waiting list for the surgery in Australia. She said she still wants her sister to visit so she can see the life she has built for herself here, meet her children and new grandchild and also give her support following her surgery.
The review applicant said, apart from her children and grandchild in Australia, she presently has her mother visiting her here. Her mother has been here since February or March. She has visited her previously. She has a multiple entry visa. She intends to stay and if the visa applicant comes over they will travel back together. In Vietnam she has another brother, who is married with one child. Her mother lives with her brother and they all live close to the visa applicant. Her father is deceased.
The visa applicant is a tailor and has her own business, where her husband and son also work. She has been with her husband since 1996 or 1997.
The Tribunal put to the review applicant that her own visa history indicates she came here on a visitor visa and eventually applied onshore for a partner visa. Why should the Tribunal not be concerned her sister will seek to do the same. She said she would surely not, because her sister has her family and business there. She would have no reason to stay here.
The Tribunal asked the review applicant why she did not apply under the Sponsored Family stream instead of Tourist stream. She said firstly she did not realise this, and secondly, she was surprised the application was refused given her sister’s strong financial position and family circumstances. She is prepared to sponsor her if necessary and understands the consequences for her of breach of conditions if the visa applicant does not comply with conditions.
Regarding the visa applicant’s travel history, she has been to Singapore and Malaysia. She is travelling to Singapore tomorrow to visit her husband’s sister.
Visa applicant
The visa applicant confirmed her address where she lives with her son and husband. This property is in her son’s name but was purchased by her. Apart from this she has one property in her name and another one owned jointly with her siblings. She is the oldest in the family, and has two younger siblings and a mother. Her brother and mother live close by and they all have close relations.
The visa applicant spoke out her business. She is the founder. She started it in the market on 2000, with only one million dong capital. She developed it from there and in 2008 they moved location to the present address and increased her capital to five hundred million dong. As well as tailoring they also sell fabric and clothes. Since then she purchased the building in her son’s name. They have variable numbers of employees depending on the workload.
The visa applicant confirmed that she gave money to the review applicant to assist with the purchase of her home last year. She confirmed the amounts and the dates of transfer. She said this was a gift to help her sister. The visa applicant confirmed she has seen the review applicant recently when she came for surgery.
She still wishes to visit Australia to see how her sister has built her life there and see her niece and nephew who she hasn’t seen for some time. She is busy in her business and tomorrow she is travelling to her husband’s sister in Singapore. The visa applicant said she understands the importance of complying with conditions and that if she does not it may impact on the ability of her or her family members to visit in future. She only wishes to visit.
Following the hearing, the review applicant provided a copy of the death certificate of her late husband, as requested during the hearing. The document names the review applicant as his spouse, but also indicates his marital status at date of death as divorced.
The Tribunal also obtained department records relating to the review and visa applicants mother’s movements.
CONSIDERATION
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.
In the present case, the visa applicant seeks the visa for the purposes of visiting her sister and her family. The Tribunal notes that, since the application was made in June 2023, the review applicant has made trips to Vietnam on two occasions. She provided an explanation for these at the hearing. The Tribunal is satisfied, despite these recent visits, that the visa applicant continues to have a desire to visit Australia to see how her sister has built her life here and to visit her sisters children. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
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 there is no personal visa compliance history to consider. The Tribunal notes the visa and review applicants’ mother is presently in Australia on a visitor visa and has travelled here several times and there is no information to suggest any non-compliance with visa conditions. There is also no information before the Tribunal to indicate an unfavourable visa compliance history relating to the review applicant.
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 (3)): 8101 – must not work in Australia; and 8201 – must not engage in study or training in Australia for more than 3 months. Conditions 8501 (must maintain adequate health insurance in Australia), 8503 (not entitled to a substantive visa, other than a protection visa) and 8558(must not stay in Australia for more than 12 months in any period of 18 months) are discretionary conditions that may be imposed.
The visa applicant is a 47-year-old woman with an established business. Evidence before the Tribunal of her financial circumstances and property ownership suggests she has no financial need to engage in employment during her stay in Australia. The Tribunal is also not concerned that she would engage in study. Therefore, the Tribunal is satisfied on the material before it that the visa applicant intends to comply with conditions to which the visa would be subject.
The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal makes the following findings on the evidence, including oral testimony and supporting documentary material. It accepts the visa applicant is and has been in a long-term marriage relationship and has an adult son of that relationship. It accepts she lives and works with her husband and son in a tailoring business which she established many years ago. The parties gave consistent oral evidence about this, and documentary evidence of the business registration and a photo of the shop has been provided. The Tribunal accepts, on her oral evidence, supported by documentary evidence of her bank statements, property ownership and evidence of financial transfers, that the visa applicant’s financial circumstances are secure and comfortable. It accepts she has regular income from her business, owns property assets and has financially assisted her sister the review applicant to purchase her property in Australia. This indicates she has no financial incentive to not return to Vietnam following her visit. The Tribunal accepts, in addition to her husband and son, she has a mother and brother and his family, and these are close family ties which are a strong incentive for her to return. Finally, she has an established business, of which she is the founder and is proud of her achievements and this is also a strong incentive for her to return. Having regard to the visa applicant’s business, family and financial ties in Vietnam the Tribunal is satisfied that the incentives for her return are greater than any factors which may encourage her to remain in Australia.
The Tribunal observes that the evidence of the death certificate of the review applicant’s late husband indicates they were divorced at the time of his death, whereas she gave oral evidence that she was with him and caring for him until his death. Ultimately, the Tribunal considers it is unnecessary to make any determinative finding about this matter as it is not directly relevant to the issues arising in the review.
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
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: 31 October 2024
Representative for the Applicant: Mr Chung LUU