Phan (Migration)

[2024] AATA 1456

Phan (Migration) [2024] AATA 1456 (3 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Hong Hai Yen Phan

VISA APPLICANT:  Mr Hong Thai Huy Phan

REPRESENTATIVE:  Mrs Pamela Nhi Tieu

CASE NUMBER:  2305247

HOME AFFAIRS REFERENCE(S):          BCC2023/1769405

MEMBER:Mara Moustafine

DATE:3 May 2024

PLACE OF DECISION:  Sydney

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 03 May 2024 at 12:03pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – intention to comply with visa conditions – stable employment in Vietnam – incentive to establish a good visa record – all other relevant matters – unmarried and no dependent family members in Vietnam – closer family ties in Australia – last remaining family member in Vietnam – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 23 March 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 16 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.

   Evidence before the Department

4. Based on his visa application, the visa applicant is a 32-years-old citizen of Vietnam, born in Ho Chi Minh City and currently living in Binh Long city. He is seeking the visa for the purpose of a family visit for 3 weeks. The visa applicant is employed as a sales worker at Quang Nhat Minh Trade and Service Co since 5 August 2022. He has never been married. His sister will fund all costs of his trip and provide accommodation at her house. The applicant has completed military service in 2013. He was previously refused an Australian Student visa in 2015. He visited Singapore (2018), Malaysia (2018) and Thailand (2015 and 2019).

5. Based on her sponsorship form, the review applicant is the visa applicant’s sister. Born in Binh Long in September 1977, she is an Australian citizen (copy of Australian passport provided) and is self-employed as a bakery owner for the past 10 years. She has previously sponsored her father (2011) and her mother (2012-2013) to visit family in Australia.

6. In a submission lodged with the application, the applicant’s representative advised that:

   ·     The purpose of the visa applicant’s travel to Australia is to visit his parents and sister, spend time with his extended family and take a 7-day family vacation to Tasmania.

   ·     He owns two properties in Vietnam (total value of 11 billion VND and free of mortgage) which he rents for a monthly income of 18 million VND, while he lives with his aunt in Binh Phuoc to care for her and be closer to his place of work.

   ·     He has been working as a Sales Representative for Quang Nhat Minh Trades and Service Limited Company and earns a monthly salary of 15 million VND. He has two savings accounts held at SacomBank with available combined funds of $300 million VND, saved from his investment properties.

   ·     Although he is not married, has no young children, and has applied for a SC 115 visa, he only intends to visit for 3 weeks and does not intend to permanently migrate to Australia until his SC 115 visa is assessed and granted. Due to his significant assets, stable employment, and income in Vietnam, he does not fall within the risk category of a visitor who will not return to Vietnam or seek illegal work whilst in Australia.

7. Documents submitted to the Department in support of the visa application included the review applicant’s invitation statutory declaration; scanned copies, with English translations where relevant, of the applicant’s Vietnamese passport with exit and entry stamps; national ID document; birth certificate; a household book; bank statement, term deposit savings and account balance confirmations dated 13/12/2022 and 06/03/2023; two certificates of land use right, house ownership and property leases at 53 Street 27, Son Ky Ward, Tan Phu District, Ho Chi Minh City and 445/19 Lac Long Quan, Ward 5, District 11, Ho Chi Minh City; his labour contract, application for leave and approval; his curriculum vitae; his temporary stay confirmation and commitment to return.

8. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because she was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of the visa grant. In particular, the delegate highlighted that as the applicant was unmarried and had no dependent family members in Vietnam, he had closer family ties in Australia, where his sister and parents lived. He was also not satisfied that the applicant had demonstrated sufficient economic ties to Vietnam as his properties and bank deposits were transferrable.

   Evidence before the Tribunal

9. On 14 April 2023, the review applicant applied to the Tribunal for a review of the delegate’s decision, a copy of which she provided to the Tribunal for the purposes of the review.

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

11. On 16 April 2024, the applicant’s representative provided a submission addressing the backgrounds of the review and visa applicants, the visa applicant’s application for a last remaining relative visa and the delegate’s concerns. Key relevant points included:

    a.The review applicant is an Australian citizen since 2013. She and her husband own a successful bakery business in Queensland. They have a combined taxable income is of between $280,000 - $400,000 per annum. She is the visa applicant’s only and elder sister. Their parents migrated to Australia on Contributory Parent visas in October 2014 and became Australian citizens in 2021. She has previously sponsored numerous relatives to visit Australia each of whom departed within the time limit of their visas.

    b.After her parents migrated to Australia, the review applicant lodged a last remaining relative visa application for her brother, then aged twenty-two, In December 2014 as their parents wished the family to be together. However, the visa applicant says he agreed to this to please his parents. However, he is yet to decide whether he will migrate to Australia when this visa is approved.

    c.The visa applicant has a stable and fruitful life in Vietnam, where his income and assets well above the average person; with two investment properties and a stable job where he has renewed the contract in the last 8 months for a period of 3 years.

    d.The visa applicant has only requested a visa for a 3-week period as that is the leave period his employer has approved. He must return to Vietnam then for work and because he has two investment property which he manages personally, collecting fortnightly rental, and an elderly grandmother that he cares for.

    e.At 32 years of age, he is in the prime years of his life in a financial and career sense. As such, it is not reasonable to allege that he would throw his whole future away by breaching his visa conditions and/or overstaying his visitor’s visa to Australia.

    f.As the visa applicant’s elderly parents and only sibling are Australian citizens, it is completely normal and expected that he would travel to Australia to visit his family from time to time.

12. Supporting documents provided included translated copies of the visa applicant’s curriculum vitae dated 9 April 2024; his labour contracts from 5 August 2022 to 4 August 2023 and from 5 August 2023 to 4 August 2026; his work confirmation letter dated 29 March 2024; bank statement from 1 October 2023 to 30 March 2024, account balance confirmation dated 15 April 2024, two term deposit books; his house lease contracts for two properties in Ho Chi Minh City and related legal certificates for land and house use rights; an acknowledgement letter from the Department of Immigration confirming that the visa applicant's application for a Remaining Relative (Class BO) (SC115) visa was lodged on 3 December 2014; and photographs of the visa applicant and his elderly grandmother; the review applicant’s bank statement from 17 December 2023 to 16 March 2024 and transactions from 1 February 2024 to 11 April 2024; their current Rates Notice; Tax Return for financial year 2022 – 2023 and financial statements for financial year ended 30 June 2023.

    The hearing

13. The review applicant appeared before the Tribunal by MS Teams videoconference on 23 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone in Vietnam and from his father in Sydney. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

14. The review applicant and her father told the Tribunal that they had each visited Vietnam individually but wished the visa applicant to visit Australia so they could all spend some time together as a family and the visa applicant could see how they lived. The visa applicant’s intention is to visit for no more than three weeks as this is the maximum leave he can take from his role as a salesperson in a water pipe company.

15. The review applicant said she applied for a last remaining relative visa for her brother in 2014 because their parents wanted them to be together. However, she did not think her brother was so interested in giving up his life in Vietnam, where he has his friends, work and investment properties. As he does not have English or the skills to work in Australia, his life is better in Vietnam, where he has a good job, lives with his maternal grandmother and they have domestic help. The review applicant told the Tribunal that there was a waitlist of 20 years when they applied for the last remaining relative visa for her brother, so there was still 10 years to go. The visa applicant would not come to Australia and overstay and jeopardise that visa as it would means he has wasted 10 years. It was important for her brother to be able to visit the elderly parents more readily, especially in the event of illness or emergency.

    The visa applicant told the Tribunal he wanted to visit his family for three weeks to see their lifestyle, celebrate his mother's birthday and visit the Gold Coast. He would pay his own way. The applicant told the Tribunal that he had been in a relationship which had broken up last year. Asked whether he might seek to find a partner in Australia, the applicant said he would not be in Australia long enough to find a partner and preferred to find a girlfriend in Vietnam, where he had friends and a life, a job and investment properties. He said the last remaining relative visa was his father's idea and he has not yet decided whether he wanted to take it up. At the same time, he did not wish to jeopardise that visa as he had already waited 10 years. The visa applicant also emphasised that he wished to be able to visit Australia at short notice should anything happen to his parents and would do nothing to put this at risk.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

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

18. 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)).

19. As the applicant has not previously visited Australia, the question of previous compliance is not relevant. There is no evidence before the Tribunal of non-compliance with conditions of her previously held visa on the part of the review applicant or other relatives she has previously sponsored to visit Australia.

20. 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.

21. The Tribunal has considered the written and oral evidence of the review and visa applicants, as well as all the documentary evidence submitted in support of the application.

22. The Tribunal accepts that the visa applicant has stable employment in Vietnam and his evidence that he does not intend to work or to study while on a three week in Australia. In these circumstances the Tribunal is satisfied that the visa applicant intends to comply with condition 8101 and Condition 8201.

23. Condition 8503 refers to entitlement and is not a condition that involves compliance.

24. In the context of the visa applicant’s intention to comply with condition 8531, the Tribunal accepts the evidence provided by the visa and review applicant that the visa applicant has a stable life in Vietnam, including work commitments, investment properties which he manages, obligations to his grandmother. The Tribunal accepts that establishing a good visa record, so he can visit his aging parents when required represents a strong incentive for the applicant to abide by the conditions of his Visitor visa and return to Vietnam within the visa time limit.

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

26. The Tribunal notes the delegate’s concern that the applicant is unmarried and has no dependent family members in Vietnam, so has closer family ties in Australia, where his sister and parents live and that his economic ties to Vietnam may be transferrable. However, the Tribunal does not consider it reasonable that the visa applicant be denied a Visitor visa for a family visit to Australia simply because he is the last remaining family member in Vietnam. Nor does the Tribunal consider that being an applicant for a permanent visa, with a long lead time should be a barrier to exclude the applicant from visiting Australia on a temporary visa in the meantime. The Tribunal notes that the review applicant has expressed readiness to post a security bond if required to do so.

27. 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

28. 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.

    Mara Moustafine
    Member