NGUYEN (Migration)

[2024] AATA 3192

NGUYEN (Migration) [2024] AATA 3192 (27 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms THI BICH NGOC NGUYEN

VISA APPLICANT:  Mr MINH TUAN NGUYEN

REPRESENTATIVE:  Ms VIVIAN HANG NGUYEN (MARN: 2015116)

CASE NUMBER:  2306058

HOME AFFAIRS REFERENCE(S):          BCC2023/2063561

MEMBER:Justin Meyer

DATE:27 August 2024

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 27 August 2024 at 5:48pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – visiting niece and other relatives – genuine temporary entrant and compliance with conditions – incentives to depart or remain – family, employment, property and financial stability – applicant’s previous applications refused, and sponsor’s previous compliant sponsorships of other relatives – sponsor’s circumstances, offer of security bond and intention to maintain sponsorship record – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, conditions 8101, 8201, 8503, 8531

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 17 April 2023 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 31 March 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 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.

   The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because, per the delegate’s decision:

   After considering the information provided, I am not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes set out above. Therefore, I am not satisfied that the applicant meets the relevant criteria in clause 600.211 in Schedule 2 of the Migration Regulations.

4. The review applicant appeared before the Tribunal on 1 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

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

9. 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 a previously held visa.

10. 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.

11. The parties made a written submission to the Tribunal. The Tribunal had a significant discussion with the witnesses about the prospect of the visa applicant returning to Vietnam.

12. Per submission of 31 July 2024:

    Residency and employment: Tuan resides in Dong Nai, a province on the outskirts of Ho Chi Minh City, Vietnam. He has been employed as a salesman for Phuc Lai Company Ltd since 05 September 2022, earning a monthly salary of 9 million Vietnam Dong.

    Previous business and COVID impact: Before the COVID-19 pandemic, Tuan's main income was from a catering business that supplied food to industrial companies, income every month was approximately $4,800. This business was registered. [Annexure A]. Tuan and his wife operated the catering business together.

    Due to the pandemic, Tuan and his wife were forced to close down their catering business, which had previously provided their primary source of income. In response to this, Tuan sought and secured employment as a salesman with Phuc Lai Company Ltd on 05 September 2022. He continues in this role to ensure a stable income for his family.

    Meanwhile, his wife has continued to run the catering business on a smaller scale. She primarily operates the business through social media to adapt to the current circumstances and to support the family financially.

    First application: On 06 January 2023, Tuan was refused a Visitor Visa SC 600 (Family Sponsored Stream) [Annexure B]. In his initial application, Tuan was invited to visit his wife's relative, Br Ngoc Duc TRAN, who had been ordained as a Priest in Melbourne. The invitation included attending the ordination ceremony, which was a significant family event. [Annexure C]

    In this first attempt, the parents of the Priest were granted visas, but Tuan's application was refused due to concerns related to the Genuine Temporary Entrant (GTE) criteria.

    Second application and initial contact with our firm: On 01 February 2023, Tuan’s niece, Ms Thi Bich Ngoc Nguyen (Ngoc), contacted our firm to assist him in re-applying for a Visitor Visa SC 600 (Family Sponsored Stream), with his niece, Ngoc, as the sponsor. This application was also refused as the case officer did not believe Tuan met the GTE criteria. [Annexure D]

    Third application: On 31 March 2023, we re-applied for a Visitor Visa SC 600 – Family Sponsored Stream with the same sponsor. The visa was refused on 17 April 2023, as the case officer stated that there was no evidence to prove the relationship between Tuan and his sponsor due to the birth certificates not being in English. [Annexure E]

    Appeal to Tribunal: On 04 May 2023, we submitted an appeal to the Tribunal ADDITIONAL GROUNDS FOR CONSIDERATION

    Below are further details supporting his application:

    In relation to the first visa application: The initial visa application was intended for Tuan to attend his brother, Br Ngoc Duc TRAN’s, ordination as a Priest in Melbourne and to visit his relatives in Australia.

    In relation to the second and third visa applications: The subsequent visitor visa applications primarily aimed for Tuan to visit his niece, Ngoc, and her family in NSW. The niece and uncle share a close familial bond, and Ngoc wishes for her uncle to witness her achievements in Australia.

    Ngoc has expressed a strong desire to share her success with her uncle and other family members who are not residing in Australia. Her achievements are significant, and she believes they deserve to be celebrated with her family.

    Strong family bonds: Tuan and his niece Ngoc share a close and supportive relationship. Allowing Tuan to visit would strengthen family ties and provide emotional support to Ngoc.

    Niece’s significant achievements: Ngoc has made remarkable progress since moving to Australia, including owning and operating a successful bakery business, owning multiple properties, and contributing significantly to Australia’s tax revenue. She wishes to share these achievements with her uncle in person.

    Cultural and emotional importance: Family gatherings and sharing personal milestones are culturally and emotionally significant. Tuan’s visit would allow the family to uphold these values and traditions.

    Financial Stability: Both Tuan and Ngoc are financially stable. Tuan has provided evidence of his savings, property ownership and family tied in Vietnam, while Ngoc’s financial situation is well-documented and robust.

    Compliance with visa conditions: Tuan has a strong intention to comply with all visa conditions and return to Vietnam after his visit. His employment and family obligations in Vietnam, along with his property ownership, strongly indicate his intention to return

    The applicant and his wife work hard and co-own two properties in Vietnam:
    
    

    Primary property: Located in … [ ]  Province. This property is 817 square meters in size and includes both a house and a garden farm.

    Additional property: A nearby property measuring 235.3 square meters.
    Both properties are fully paid off, which demonstrates their financial stability and substantial ties to Vietnam. [Annexures F & G]

    Real estate value: The area where their properties are located currently holds high real estate value, which further enhances their financial standing and the significance of their assets in Vietnam.

    At the time of the visa application, he provided evidence of a savings account with [ ] , containing 200 million VND (approximately $12,500 AUD). This further demonstrates his financial stability and capacity to support himself during his visit in Australia, even though the sponsor was willingly to support him all costs. [Annexure H]

    Marital status and family: The applicant is married and has two children. This establishes significant immediate family ties remaining in Vietnam during his visit to Australia.

    Family criteria: Tuan meets the criteria of having immediate family members remaining in Vietnam, indicating his intention to return after his visit.

    Financial and property stability: Tuan’s income is substantial compared to an average Vietnamese and he owns properties in Vietnam and has strong family ties, further supporting his intention to return home.

    At the time of the second and third Visa application, the checklist guidelines of the Australian Consulate in HCMC did not require the translation of documents in Vietnamese; documents in other languages submitted in the application must be attached with a notarized English translation. [Annexure I]

    DETAILS OF THE SPONSOR

    Tuan’s niece, Ngoc, has been residing in Australia since 2008. She has three siblings in New South Wales who are successful business owners in the bakery industry. Additionally, she has several relatives across Victoria, New South Wales, and Western Australia. These businesses contribute significantly to Australia’s tax revenue.

    Ngoc operates a successful bakery name [ ]  [Annexure J], located [ ] NSW.with her husband, and their business reported a turnover income of $ 1,209,659 [Annexure K], and her tax income of $343,151 for the 2023 financial year [Annexure L]. This demonstrates her financial stability and success, further supporting the credibility of her sponsorship for the uncle visa application.

    Ngoc owns three properties:

    [ ]  NSW  [Annexure N]

    [ ] NSW (Main residence, fully paid off) [Annexure N]

    [ ] NSW [Annexure O]

    The rental income from these properties is used to cover the mortgage payments on the properties.[Annexure P]

    In the application to support her uncle’s Visitor visa application, Ngoc has provided a personal bank statement with the balancing was $ 308,016. [Annexure Q]

    Ngoc has never had any adverse records as a sponsor for a Visitor visa

    Ngoc has offered to pay a security bond to strengthen the applicant’s case. This bond serves to maximize the likelihood that the applicant will comply with visa conditions and return to Vietnam before the visa expires. [Annexure R] Ngoc is fully aware of her obligations to ensure the applicant leaves Australia before the visa expires. Failure to comply would result in the sponsor being unable to sponsor another applicant for five years and potential blacklisting.

    Ngoc is genuinely frustrated by the inability to have her uncle visit, despite his status as a genuine visitor.

    Ngoc and her husband have successfully sponsored family members for Visitor visas in the past, with all visa holders complying with their visa conditions:

    Thi Kim Loan NGUYEN received a 3-year visa SC 600, multiple entries [Annexure S]

    Thi Ngoc Dung NGUYEN received a 3-month stay visa in 2018 [Annexure T]

    Cong Danh NGUYEN received a 3-month stay visa in 2018 [Annexure U]

    We submit that the above information underscores the established ties and contributions of the sponsor - Ngoc and her extended family within Australia.

    We further submit that the refusal reasoning from the DHA case officer appeared to be generic and did not reflect careful consideration of Tuan’s individual circumstances.

13. The visa applicant wishes to visit his niece in Australia, the review applicant (sponsor).

14. The review applicant (sponsor) told the Tribunal that the intention of the visit was for her uncle to see her and her life in Australia, especially as she is a successful businessperson.

15. The trip length is depending on how long her uncle can get off from work. I enquired how long he could be away from his wife and children in Vietnam, but the review applicant said that they could look after themselves, his youngest child being 13. The mother was capable of looking after the children.

16. The visa applicant’s work is as a salesman. I asked about the economic conditions of Vietnam and how they affected matters. The review applicant (sponsor) told the Tribunal that people do not borrow as much as in Australia, and thus were not as badly affected by interest rate increases. He is self-sufficient. For example, he grows some of his own food.

17. I note that the department appeared to be concerned that his claimed income was not high enough to create an incentive to return at the end of his stay. The review applicant (sponsor) told the Tribunal that the visa applicant has a combined income with his wife which is good enough to support his family. He also has two properties in Vietnam.

    Analysis

18. The Tribunal is satisfied that there are incentives to return for the applicant. Considerable financial and property information has been provided to the Tribunal. He has a plausible reason for visiting Australia and has no negative visa breach history.

19. His sister is prepared to accommodate him and the family is prepared to pay a security bond to reinforce the genuineness of his entry.

20. The overall impression was of an applicant who wishes to see family who has several incentives to return including an apparently stable financial and family situation.

21. Having examined the parties’ information I find that the visa applicant has various incentives to return and is someone who would be a temporary entrant to Australia.

22. His employment and financial circumstances and studies point towards return, the economic situation in his home country raises no concerns nor does social unrest or conflict impacting upon him. He has professional and personal reasons and incentive to return to his home country.

23. The purpose of an applicant's visit to Australia is credible, including the proposed duration of stay (less than three months) and intended activities in Australia. The duration is understandable given the circumstances.

24. I accept that the intention of the trip to Australia is to visit Australian family members.

25. There is no evidence of any visa non-compliance from the visa applicant or indeed anyone in the family. There is no evidence of a desire for any other visa, work or study in Australia or a lack of interest in being present for family in Vietnam.

26. There is no substantial evidence before me to support a contention that the visa applicant will not genuinely intend to stay temporarily in Australia.

27. The Tribunal has also considered all other relevant matters (cl 600.211(c)). While incomes are higher on average in Australia, it is not apparent that this is a motivator for this visa applicant.

28. 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

29. 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.

    Justin Meyer
    Member