Nguyen (Migration)

[2023] AATA 3654

Nguyen (Migration) [2023] AATA 3654 (19 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Ngoc Truyen Nguyen

VISA APPLICANT:  Mr Huu Truong Dang

REPRESENTATIVE:  Ms Jennifer Nguyen (MARN: 2117717)

CASE NUMBER:  2214406

HOME AFFAIRS REFERENCE(S):          BCC2022/561997

MEMBER:Tania Flood

DATE:19 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 19 October 2023 at 2:20pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s convictions and imprisonment in Vietnam – offer of a security bond – visa applicant’s insecure financial position – possibility of working in Australia – decision under review affirmed        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231, 600.612

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 Home Affairs (‘the Department’) on 7 September 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 7 March 2022. 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 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 (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.

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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 18 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The review applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND AND EVIDENCE

   Visa application

8. The following information was provided by the visa applicant in his application for a Visitor Sponsored Family Visa.

9. He is a thirty-five-year-old Vietnamese citizen.  He has never married and his mother, who is an Australian permanent resident, is the review applicant.

10. He applied for the visa for a period of up to three months. He stated that he intended to visit family in Australia from 1 to 30 April 2022. He is employed in Vietnam as a driver with An Phat Khanh EMT since 1 May 2021. He declared that the review applicant would fund his stay in Australia. In addition, the visa applicant indicated he had access to savings.

11. The visa applicant declared having a police record for theft, robbery, break and enter for which he was convicted on 7 November 2005 to 18 months imprisonment as evidenced in the Vietnamese police check submitted with the visa application.

    Evidence submitted to the Department

12. The visa applicant submitted the following to the Department as part of the visa application.

    ·A copy of the visa applicant’s birth certificate, with English translation;

    ·A copy of the visa applicant’s car registration certificate, with English translation;

    ·A copy of the visa applicant’s statement of bank account from 1 November 2021 to 4 March 2022;

    ·A copy of the visa applicant’s purchase of vehicle, with English translation dated 1 May 2021;

    ·A copy of a household registration book for Le Thi Thao with translation dated 5 May 2011 indicating the visa applicant is the grandchild of the householder;

    ·A copy of the visa applicant’s identity card, with translation;

    ·A copy of the visa applicant’s justice record, with translation dated 21 December 2021. This document noted that the applicant was convicted of theft, robbery, and break and enter on 7 November 2005. That he completed 1 year and 6 months of time in prison and paid 50,000 VND for first instance criminal court fees.

    ·A copy of the review applicant’s statement of bank account, dated 24 February 2022;

    ·A statutory declaration from the review applicant. In this statutory declaration the review applicant claimed to suffer from major depressive disorder. That she had not seen her son for a long time and would like him to visit her in Australia. She claimed that she is in the position of lodging a security deposit of $15,000 to prove her son’s genuine intention to stay in Australia.

    ·A copy of the review applicant’s Vietnamese passport;

    ·A copy of the review applicant’s visa grant notice, dated 7 September 2016;

    ·A copy of the review applicant’s blood test from Douglas Hanly Moir, dated 25 January 2022;

    ·A copy of the review applicant’s ultrasound and x-ray results from TrueScan Radiology, dated 31 January 2022;

    ·A copy of the review applicant’s MRI form from Healthcare Imaging Services, dated 25 January 2021;

    ·A copy of the review applicant’s cervical spine and skull x-ray results from Radiology Imaging Solutions, dated 29 July 2021;

    ·A copy of the review applicant’s capacity / certificate of fitness, dated 13 July 2021;

    ·A copy of the review applicant’s certificate of capacity / certificate of fitness, dated 8 March 2021;

    ·A copy of the review applicant’s application for personal injury benefits, dated 14 April 2021. In this application, she noted that she was t-boned while driving.

    ·A copy of the review applicant’s physio attendance list from 5 August 2021 to 31 January 2022;

    ·A copy of the review applicant’s imaging request from TrueScan Radiology, dated 24 January 2021;

    ·A copy of the review applicant’s imaging / consultation request from TrueScan Radiology, dated 29 November 2021;

    ·A copy of a medical note for the review applicant from Montgomery Medical Practice, dated 31 January 2022;

    ·A copy of the review applicant’s Centrelink medical certificate, dated 9 February 2022;

    ·A copy of the review applicant’s imaging / consultation request from TrueScan Radiology, dated 3 August 2021;

    ·A copy of a medical note for the review applicant, dated 25 January 2022;

    ·A copy of a medical note for the review applicant, dated 7 February 2022;

    ·A copy of an imaging request for the review applicant from TrueScan Radiology, dated 27 January 2022;

    ·A copy of an imaging request for the review applicant from Rayscan Imaging, dated 13 July 2021;

    ·A copy of a medical note for the review applicant, dated 20 April 2021;

    ·A copy of an imaging request for the review applicant from Rayscan Imaging, dated 20 April 2021;

    ·Submissions from the representative, Jack Ta & Associates. In the submission, they cite migration law and cases to argue that the applicant held a genuine intent to visit Australia according to the conditions of 600.211(a) of the Act. They noted that the visa applicant and review applicant both held sufficient financial means to support the visa applicant during their stay. Furthermore, they submitted that the applicant deeply missed her son. That they understand the consequences of violating the visa conditions. They noted that at the time of the submission, it had been nearly 17 years since the visa applicant had been convicted of his crime.

    ·A copy of the visa applicant’s Vietnamese passport;

    ·A copy of neurophysiology report for the review applicant, dated 23 March 2022;

    ·A copy of medical note for the review applicant, dated 4 April 2022;

    ·A copy of the review applicant’s patient health summary dated 26 May 2022. This document contained active medical history and immunisations.

    ·A copy of the review applicant’s wrist ultrasound findings from TrueScan Radiology, dated 2 May 2022.

    ·A copy of the visa applicant’s account statement from 2 May 2022 to 25 July 2022.

    ·A copy of the visa applicant’s account statement from 2 May 2022 to 1 August 2022.

    DELEGATE’S DECISION

13. In the decision record of 7 September 2022, the delegate was unsatisfied that the visa applicant demonstrated a genuine intent to temporarily stay in Australia. The delegate noted that the visa applicant did not indicate the presence of family members within Vietnam, while noting the ties to his mother, the review applicant, in Australia.

    The Tribunal Hearing

14. The review and visa applicants appeared before the Tribunal on 18 October 2023. The review applicant submitted an employment verification letter from her employer and evidence of completion of a Certificate III in Individual Support. The review and visa applicants’ oral evidence were generally consistent and is summarised as follows:

15. The review and visa applicants testified that they are mother and son.

16. The review applicant is an Australian Permanent Resident. Her Australian citizen husband is deceased and she has two children. Her daughter lives permanently in Australia and her son lives in Vietnam. She has no other relatives in Australia.

17. The review applicant and her daughter are housing commission residents. The review applicant works part-time in a nail salon earing approximately $800 per fortnight. She also receives a government benefit payment. Her daughter is not currently working.

18. The review and visa applicants last saw each other in August/September 2023 when the review applicant travelled to Vietnam. They stayed together for about three weeks on that occasion and she helped the visa applicant relocate to Dalat City. Prior to that visit the review applicant visited the visa applicant in Vietnam in September 2022.

19. The review applicant’s parents are deceased. She has numerous siblings in Ho Chi Minh City.

20. The review applicant testified that she has several medical conditions although she is able to attend to her own personal care needs.

21. The visa applicant recently moved from Hanoi to Dalat City where he has no relatives and lives alone. In Hanoi he worked as a taxi driver and has registered to be a taxi driver in Dalat City. He is still waiting for finalisation of his application for registration. The review applicant indicated that she is assisting the visa applicant financially in the meantime and the visa applicant stated he has found some work in a restaurant and convenience store while he waits.

22. The review applicant stated she regularly sends her son money to assist him financially. She previously helped him to purchase a motor scooter and a car. She stated that taxi drivers do not earn much money and sometimes there is a lack of work. The visa applicant confirmed he receives financial assistance from his mother but stated he does not want to continue relying on her.  He said he has a small amount of savings to assist with the cost of travel to Australia. He claimed to have no other assets.

23. The visa applicant is single and has no children.

24. When asked about religious beliefs the review applicant stated that her son attends church. She said that he is not yet fully dedicated to the religion but sometimes attends church on Sunday. The visa applicant confirmed his attendance at a Catholic church. He said his mother encouraged him to attend church and pray for a successful visa outcome. He said that although he is not baptised he will take steps to convert to Catholicism. The review and visa applicants stated that his church attendance has not caused him any difficulty in Vietnam.

25. The visa applicant does not engage in any political activity. He stated that his prior criminal record does not cause any problems for him now.

26. The review applicant indicated that her son suffers from loneliness now that his grandmother, with whom he previously lived, is deceased. She said he has some mild depression and wishes he could visit her at least once a year. The visa applicant confirmed he has been alone since his grandmother passed away.

27. The review applicant indicated that it is their wish that the visa applicant could visit Australia once a year for a maximum of three months. She stated that following the completion of her Certificate III she expects to be busier with work and won’t have time to visit Vietnam. 

28. The review applicant indicated she would pay for the visa applicants travel and living expenses. She indicated a willingness to provide a security bond of $15,000 to facilitate the grant of the visa but when asked about her ability to do so she said she would need to borrow the money.  The visa applicant stated that he would not wish to remain in Australia unlawfully. He said he is curious to know how his mother and sister are living in Australia but will return home when the visit ends.

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. 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.

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

31. 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)).

32. The Department’s records indicate that the visa applicant has not visited Australia before. There is no evidence on non-compliance with visa conditions by immediate family members in Australia.

33. 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.

34. As discussed with the review applicant during the hearing the visa applicant’s financial position is insecure. He has no assets or significant savings and usually works as a taxi driver. Even if he does secure work as a taxi driver in Dalat City in the near future, the available evidence indicates his income will be low and somewhat unreliable. The available evidence also indicates that when employed in his chosen profession as a taxi driver in Hanoi he continued to rely heavily on financial assistance from his mother. During the hearing he stated that he needed the extra support during the Covid pandemic when work was scarce but the bank statements provided in submissions indicate that the review applicant has been regularly transferring money to the visa applicant’s account including after the worst period of the pandemic.  Her oral evidence is that she continues to do so now because taxi driver earnings are limited and unreliable. The Tribunal considers the visa applicant’s economic circumstances could induce him to look for work in Australia during the proposed three month visit and will also act as an incentive for him to remain in Australia after the end of a permitted stay.

35. The available evidence also indicates that the visa applicant’s close immediate family, that being his mother and sister, are residing permanently in Australia. Whereas the Tribunal accepts the visa applicant had a close bond with his grandmother it appears her passing has left him somewhat alone in Vietnam.  The evidence indicates that he has no relatives close by to his current place of residence as all his extended family live in the vicinity of Ho Chi Minh city. Furthermore, he is single. The Tribunal finds the review applicant’s evidence that her son is lonely and somewhat depressed to be plausible in the circumstances.  In the Tribunal’s view the visa applicant’s close personal ties in Australia far outweigh any personal ties he has in Vietnam.  In such circumstances and particularly given his feelings of loneliness and depression, the Tribunal considers there will be sufficient inducement for the visa applicant to remain in Australia after the end of a permitted stay.

36. In view of the above the Tribunal is not satisfied that the visa applicant will comply with conditions 8101 and 8531 if granted a Visitor Visa.

37. The Tribunal has also considered and has concerns about the claims made at hearing in respect of the visa applicant’s recent church attendance in Vietnam. When questioned further about this the visa applicant indicated that his church attendance is due to the review applicant’s urgings and he offered little in the way of a plausible explanation for his recent church attendance and claimed desire to convert to Catholicism. Also, as discussed with the review applicant during the hearing, claims of religious persecution are known to be made by Vietnamese citizens seeking to remain permanently in Australia. The Tribunal has considered the review and visa applicant’s expressed reassurances that the visa applicant will return to Vietnam after a short visit to Australia but remains concerned that his recent attendance at Catholic church services, despite him not being Catholic, could be for the purpose of seeking protection and remaining permanently in Australia, rather than for a genuine reason.

38. The Tribunal has also considered the review applicants claimed willingness to provide a security bond of $15,000 to facilitate the grant of the visa.  However, based on the available evidence there is no certainty that she has access to that sum of money and the Tribunal has placed little weight on this testimony.

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

40. The Tribunal has some sympathy with the applicants in the circumstances but notes that on the available evidence the review applicant, despite having some health concerns, returns to Vietnam on a relatively frequent basis to visit the visa applicant.

41. For the above reasons the Tribunal is not 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 not met.

    DECISION

42. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Tania Flood
    Member