Nguyen (Migration)

[2023] AATA 724

Nguyen (Migration) [2023] AATA 724 (17 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Cong Van Nguyen

VISA APPLICANT:  Ms Thi Hoa Dang

CASE NUMBER:  2202815

HOME AFFAIRS REFERENCE(S):          BCC2020/369434

MEMBER:K. Chapman

DATE:17 March 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 17 March 2023 at 6:32pm  

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – complying with visa conditions – applicant’s migration history – lengthy overstay on a previous Visitor visa – application for a permanent visa – property ownership in home country – financial stability – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611

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 February 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, Ms Thi Hoa Dang, applied for the visa on 10 February 2020. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this matter, the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist 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 she 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 she was assessed as not genuinely intending to stay temporarily in Australia. On 1 March 2022 the review applicant, Mr Cong Van Nguyen (the son of the visa applicant), applied to the Tribunal for review of the visa refusal decision. He provided a copy of the delegate’s decision to the Tribunal with his review application. The review applicant also lodged material including, inter alia, identity documentation, property ownership records, family composition information, financial records (including rental income) and statements in support of the visa application. The Tribunal has duly considered all submitted material.

5. The review applicant appeared by video before the Tribunal on 1 February 2023 to give evidence and present arguments. He confirmed that he was comfortable participating in the hearing by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant indicated he understood the interpreting service.

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

   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 she has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by her was subject; whether she intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

   Evidence before the Tribunal

8. The evidence provided to the Tribunal, in summary, establishes the following facts. The visa applicant is 58 years of age, a widow and resides in Vietnam with her eldest son. The visa applicant has her parents and some siblings residing in Vietnam. She is retired and earns money from her investments, which include rental property. The review applicant has invited the visa applicant to Australia to visit him and his family. The visa applicant has more than twenty relatives residing in Australia, according to the review applicant. This includes some siblings, children and grandchildren.

9. The review applicant owns a nail salon in Australia. The review applicant first came to Australia as a student and then utilised the Partner visa pathway to establish permanent residence, then citizenship. He acquired the latter in late 2022. He is financially stable and can accommodate his mother in his own home if she is granted the Visitor visa. The review applicant has his own family and wants his mother to be able to see them in Australia. When asked by the Tribunal how long he wanted his mother to stay in Australia, the review applicant advised up to one year.

10. During the review hearing, the Tribunal canvassed with the review applicant the migration history of his mother. The review applicant agreed that the visa applicant overstayed on a Visitor visa she once held. He advised she overstayed for around five or six years. He also informed the Tribunal that his mother has applied for a Contributory Parent Subclass 173 visa. When initially asked by the Tribunal if his mother intended to migrate to Australia permanently, the review applicant said she did not. The Tribunal raised with the review applicant that given his mother applied for the Subclass 173 visa, which can lead to permanent residence, this might tend to suggest she doesn’t intend to stay in Australia temporarily as the holder of a Visitor visa. In response, the review applicant advised his mother wants to help out with his children, although she doesn’t intend to remain in Australia permanently. He later changed tack with his evidence, explaining that his mother wants to spend as much time as possible with her four grandchildren in Australia, so she would like permanent residence also.

11. The Tribunal raised with the review applicant that given his mother had apparently overstayed her last Visitor visa by approximately five years, this might tend to suggest she doesn’t intend to stay in Australia temporarily as the holder of a Visitor visa. The review applicant responded that he could support his mother financially in Australia and she will make a legal promise not to overstay her visa this time.

12. Pursuant to the procedure in s 359AA of the Act, the Tribunal raised with the review applicant that Departmental systems contain the following information:

    a.Departmental records indicate the visa applicant arrived in Australia on 9 September 2007 holding a Subclass 676 Tourist Visa. Upon the expiry of that visa, she remained in Australia as an Unlawful Non-Citizen from 10 December 2007 until 7 November 2012, a period of almost five years. She was granted a Bridging Visa E on 8 November 2012 and departed Australia on 11 November 2012; and

    b.the visa applicant applied for a Subclass 173 Contributory Parent visa on 11 November 2021.

13. The Tribunal indicated the above information is relevant to the review, as it might tend to suggest that the visa applicant has a history of disregarding Australian visa requirements and she would seek to remain in Australia after the end of a permitted stay, if a Visitor visa is granted to her. The Tribunal informed the review applicant that if it was to rely upon this information, it would be the reason, or a part of the reason, to affirm the decision under review as the visa applicant would not satisfy cl 600.211 of Schedule 2 to the Regulations.

14. The review applicant confirmed to the Tribunal he understood why the information is relevant to the review. When asked by the Tribunal if he would like to comment on or respond to the information now, or if he would like additional time to do so, the review applicant indicated he would answer immediately. The review applicant explained that in his mother’s latest Visitor visa application, she made an affirmation that she will comply with Australian visa requirements. He will help her comply, noting at this stage in her life she just wants to spend time with her grandchildren and help look after them. The review applicant also indicated he and his mother are both financially secure and she doesn’t need to work in Australia. His mother is elderly now, according to the review applicant, and she wants to visit Australia and be shown around and to spend time with her family. The review applicant wants to show her around Australia to repay her for the sacrifices she made earlier for him. The Tribunal has carefully considered the review applicant’s response to the information raised with him pursuant to s 359AA of the Act.

15. The Tribunal notes that the review applicant has submitted various documents indicating the financial stability of the visa applicant, for example with respect to savings, property ownership and rental income. Further, the review applicant submitted material attesting to his own financial position, for example a Council rates notice. The Tribunal accepts that the review applicant and his mother are financially comfortable in relation to their present living circumstances.

16. During the latter portion of the review hearing, the Tribunal raised with the review applicant that it might have concerns, as earlier discussed, with respect to the visa applicant overstaying her previous Visitor visa for approximately five years and also that she had applied for a Subclass 173 visa which can lead to permanent residence, when considered in relation to the genuine temporary entrant requirement. The review applicant responded that he will ensure his mother abides by visa conditions, he loves her a lot, he wants her to see her grandchildren and it would be sad if she couldn’t travel. He added that if his mother’s Subclass 173 visa is granted, she will definitely comply with Australian visa requirements.

    Analysis

17. In the present matter, the visa applicant seeks the visa for the purpose of visiting her son and other family members in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

18. In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)). It is apparent that the last substantive visa held by the visa applicant was a Visitor Subclass 676 visa. She held that visa upon her arrival in Australia on 9 September 2007, until its expiry on 9 December 2007. No visa conditions were attached to that visa. The visa applicant was also granted a Bridging Visa E on 8 November 2012 and last departed Australia on 11 November 2012. There is no evidence before the Tribunal to confirm that the visa applicant breached any conditions attached to these visas. This is a matter that weighs in favour of granting the visa to her.

19. 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):

    ·8101 – must not work in Australia; and

    ·8201 – must not engage in study or training in Australia for more than 3 months.

    Discretionary visa conditions may also be imposed, however, given the delegate did not refer to these in the primary decision the Tribunal proceeds upon the basis they would not have been. On balance, the Tribunal is satisfied that the visa applicant would comply with the above visa conditions given her personal circumstances and the financial support of the review applicant. This is a matter that weighs in favour of the grant of the Subclass 600 visa to her.

20. The Tribunal has also considered all other relevant matters as required by cl 600.211(c). The Tribunal accepts the review applicant can afford to financially support a visit to Australia by the visa applicant. The Tribunal also accepts the visa applicant has significant family links and assets in Vietnam. These are matters which might suggest the visa applicant will return to Vietnam if granted a Visitor visa.

21. However, that the visa applicant overstayed her previous Visitor visa by approximately five years is a very serious matter. Further, the visa applicant has applied for a Contributory Parent Subclass 173 visa, which may lead to permanent residence. Additionally, the review applicant conceded in the review hearing that his mother would like permanent residence, after initially providing inconsistent evidence to the contrary. These matters, in combination, point strongly to the visa applicant not genuinely intending to stay temporarily in Australia to visit her family. They weigh against of the grant of the Subclass 600 visa to her.

22. The Tribunal has very carefully considered all the evidence in this matter. The Tribunal notes that it must apply the law to the facts of this matter in an impartial and dispassionate fashion, even if the result is upsetting to the review and visa applicants. Following careful consideration of the evidence, it is apparent to the Tribunal that the visa applicant intends to establish permanent residence in Australia. The factors outlined pointing to the visa applicant not genuinely intending to stay temporarily in Australia to visit her family, weigh more strongly against the grant of the Visitor visa than those factors to the contrary.

23. On balance, 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 it finds that the requirements of cl 600.211 are not met.

    DECISION

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

    K. Chapman
    Member