Nguyen (Migration)

[2023] AATA 3893

Nguyen (Migration) [2023] AATA 3893 (28 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Trang Thi Cam Nguyen

VISA APPLICANT:  Ms Anh Thi Pham

REPRESENTATIVE:  Mr Malintha De Mel

CASE NUMBER:  2214865

HOME AFFAIRS REFERENCE(S):          BCC2022/1761672

MEMBER:Nicole Burns

DATE:28 September 2023

PLACE OF DECISION:  Melbourne

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 28 September 2023 at 10:40am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visit daughter and family – married an Australia citizen – review application in respect of the visa applicant’s partner visa refusal has been withdrawn – applicant complied with conditions of her last visa – visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65

Migration Regulations 1994, Schedule 2, cl 600.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 on 11 August 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 19 May 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.  The delegate found the visa applicant failed to demonstrate sufficiently strong commitments in their home country that would act as an incentive to return there.

5. The review applicant – who is the visa applicant’s daughter - appeared before the Tribunal on 11 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr Abraham Garcia, her brother, Mr Tri Thinh Nguyen, and her brother’s wife, Mrs Thieu Kha Le in person, as well as the visa applicant via the telephone from Vietnam. 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.  The representative attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa applicant is a 63-year-old woman from Kien Gian province in Vietnam.  She seeks the visa to visit her family members in Australia: specifically her daughter (the review applicant), her son, and three grandchildren. 

9. 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.

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

11. 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)). 

12. Departmental records indicate the visa applicant was granted a Tourist (Subclass 600) visa on 11 February 2015 which was valid to 9 June 2015.  That visa was subject to conditions 8503 (not entitled to a substantive visa, other than a protection visa, while remaining in Australia), 8101 (no work), 8201 (maximum three months study or training), and 8531 (must not remain in Australia after end of permitted stay).  The review applicant told the Tribunal she and her brother financially supported their mother during this period, who primarily stayed with both of them, which the Tribunal accepts. There is nothing before the Tribunal to indicate that the visa applicant did not comply with these conditions and the Tribunal is satisfied the visa applicant has complied substantially with the conditions of the last substantive visa held.

13. The visa applicant arrived in Australia holding the Tourist visa on 9 March 2015 and was granted a Bridging visa A (BVA) onshore on 25 May 2015, valid until 23 August 2017 (in accordance with the lodgement of a protection visa, then a partner visa, discussed in more detail below) which is when she departed Australia. 

14. 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 may 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; and 8531 – must not remain in Australia after end of permitted stay.

15. There is no claim nor indication that the visa applicant intends to study or engage in training during her proposed visit to Australia and the Tribunal is satisfied she will abide by condition 8201 if the visa is granted. 

16. With respect to work, at hearing the review applicant said her mother wants to visit to spend time with herself, her brother and their respective families here.  She said initially her mother thought she would stay for around a year as it coincided with the birth of her daughter, but now she intends to stay for around three months.  She said her mother plans to divide her time between her children’s homes in Springvale and will cover other costs of the visit from her own savings.  The visa applicant confirmed these arrangements in her oral evidence to the Tribunal, which was corroborated by her son’s written and oral evidence to the Tribunal. 

17. Evidence has been provided to the Department of the visa applicant’s employment with a bus company in Vietnam in the form of an employment letter.  The representative provided to the Tribunal a translated copy of a recent  bank account statement of the visa applicant confirming savings.  Given this, the Tribunal is satisfied the visa applicant intends a holiday in Australia, not to work and therefore will abide by condition 8101.

18. The Tribunal notes and accepts the written and oral evidence of the visa applicant’s son, his wife, and the review applicant and her husband about the plans and reasons for the visa applicant’s proposed visit and their evidence that she will abide by relevant visa conditions, as she has in the past.

19. The Tribunal has also considered all other relevant matters, pursuant to cl.600.211(c).  In doing so the Tribunal has considered factors that would act as an incentive for the visa applicant to remain in Australia after the proposed stay and factors that would act as an incentive for her to return to Vietnam.

20. In a statutory declaration dated 9 September 2023 provided to the Tribunal, and confirmed at hearing, the review applicant said the plan is for her mother to visit for around three months.  She will mainly spend time with her three young grandchildren here.  The review applicant said she runs a family day care from home and looks after her daughter, who is around one.  Her son – who is eight – attends school but requires additional care before and after school given he is autistic.  Presently the review applicant’s husband takes the primary role caring for their son, but he wishes to have more time to study his journalism degree.

21. In terms of the visa applicant’s circumstances, the review applicant stated that presently her mother lives alone in a house she owns in Tan Hiep, Kien Giang province.  The visa applicant’s daughter lives next door, along with two grandchildren, aged eight and 13 whom she looks after at times.  The visa applicant has two other daughters and a son who live nearby in Vietnam, and nine grandchildren (in total) ranging in ages from six to 18, several of whom visit her on weekends.  The visa applicant helps care for her younger grandchildren on occasion.  The Tribunal accepts the review applicant’s evidence in this regard – which was corroborated by the visa applicant’s evidence - and accepts the visa applicant has strong family ties to Vietnam.

22. The presence of the visa applicant’s daughter, son and three grandchildren in Australia may act as an incentive for the visa applicant to stay in Australia (as was the case when she last visited them in Australia in 2015, staying until 2017).  However the Tribunal accepts the presence of her four other children and their children (nine in total) in Vietnam whom she is close to and in respect of the younger ones helps care for would act as a strong incentive for the visa applicant to return to Vietnam before the expiry of any visitor visa that may be granted. 

23. The Tribunal notes in the visitor visa application form the visa applicant indicates she is married to an Australian citizen and wants to spend time with him here.  When asked about the visa applicant’s marital situation at hearing the review applicant said her father died in 1997 and her mother remarried an Australian citizen whom she met whilst visiting Australia, in April 2017.  Sometime after the visa applicant returned to Vietnam they purportedly lost contact.  The review applicant was not sure if her mother is divorced.  When asked about her marriage to an Australian citizen at hearing the visa applicant said they are separated but have not yet divorced.  She said after she returned to Vietnam in late 2017 they kept in touch initially but have had no contact for some time now.

24. The Tribunal notes on 27 February 2018 (after she had returned to Vietnam from visiting Australia) the visa applicant lodged a partner visa application, sponsored by her husband – an Australian citizen whom she married in Australia on 4 April 2017.  The application was refused and according to Tribunal records her husband sought a review of that decision with the Tribunal (differently constituted).  This indicates to the current Tribunal the visa applicant’s desire at that time to migrate permanently to Australia.  The presence of her husband in Australia could also act as an incentive for the visa applicant to want to remain here. 

25. In a post hearing written submission provided to the Tribunal the representative argues that the visa applicant’s partner visa application is fundamentally distinct from her current application for a visitor visa.  He notes there are statutory provisions that explicitly prohibit individuals who have previously applied for one visa category form applying for another, which shows the legislature did not intend to create an automatic bar based solely on prior applications. 

26. Whilst the presence of the visa applicant’s husband (an Australian citizen) in Australia, and lodgement of a partner visa application, does raise some concerns about whether or not the visa applicant intends to stay in Australia, based on the visa applicant’s oral evidence the Tribunal accepts that the visa applicant and her husband have separated and are no longer in contact.  At hearing the visa applicant did not indicate that she wished to re-establish a relationship with her husband, and the Tribunal also notes, as discussed at hearing, the review application in respect of the visa applicant’s partner visa refusal has been withdrawn.

27. For these reasons the Tribunal accepts the visa applicant is separated from her husband  and his presence here would not necessarily act as an incentive for her to stay beyond the permitted stay of any visitor visa that may be granted.  

28. In terms of the visa applicant’s employment ties in Vietnam, the review applicant said since 2018 her mother has worked as a manager for a bus company which is owned by her mother’s brother.  The visa applicant told the Tribunal she gets 20 days annual leave which has accrued because she has not yet taken any leave. She plans to return to work and her family in Vietnam after visiting her son, daughter and grandchildren in Australia. 

29. In a letter[1] provided to the Tribunal the visa applicant states that she has worked full time for Hoang Hai Quan Coach company for many years and receives a monthly income of 9 million VND.  She states further that she has accrued savings of around AUD25,500 as evidenced by her bank statement provided.  

    [1] Dated 6 September 2023

30. On this basis the Tribunal accepts the visa applicant’s employment circumstances in Vietnam: specifically that she works full time as a manager at a bus company owned by her brother.  It accepts she has accrued annual leave since she started work there in 2018, as well as some savings.  It accepts her job acts as a strong incentive for the visa applicant to return to Vietnam before the end of any permitted stay if the visitor visa is granted.

31. Additionally the review applicant told the Tribunal her mother owns her own home in Vietnam as well as some land nearby which the review applicant’s brother uses as a piggery.  A copy of a translated certificate of land use right for 1,049 square metres of land in Thanh Don A commune, Tan Hiep district, Kien Giang province was provided to the Tribunal.  On this basis the Tribunal accepts the visa applicant owns a house and land in Vietnam which would act as some, albeit limited, incentive for her to return there. Her property and land can be sold and therefore are less of an incentive in this regard.

32. [Migration history deleted].  

33. The visa applicant did not indicate any current concerns in this respect and reiterated her intention to visit Australia for a few months to see her family here, before returning to Vietnam where the remainder of her family live, and to her work there. 

34. [Details deleted]. 

35. The representative also submits that the visa applicant’s previous visa application should not automatically preclude her from obtaining a visitor visa, as each application must be evaluated on its own merits according to applicable laws and policies.

36. [Details deleted].

37. At hearing the review applicant gave evidence about her own circumstances and immigration history.  She said she came to Australia in 2009 holding a student visa and successfully completed a hospitality course.  She married her now husband – an Australian citizen originally from Chile – and subsequently became a permanent resident through obtaining a partner visa.  She became an Australian citizen in 2016, evidenced by a copy of her Australian citizen certificate provided. 

38. As noted, the review applicant told the Tribunal presently she runs a family day care from home full time and her husband is a nurse who is also studying journalism.  She appears to have worked hard to establish her life in Australia and there is no indication that she has circumvented the proper migration channels in doing so.  The Tribunal is of the view that she (and her brother) will ensure the visa applicant abides by conditions attached to her visitor visa so as not to jeopardise future visits.

39. The Tribunal also accepts the oral evidence of the visa applicant’s daughter-in-law that her  mother, who is also from Vietnam, visited her and her husband (the visa applicant’s son) in Australia twice since they married in 2018 holding a visitor visa.  She abided by the relevant visa conditions including returning to Vietnam before the end of the permitted stay.

40. 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

41. 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.

    Nicole Burns
    Member