Tran (Migration)

[2024] AATA 1463

Tran (Migration) [2024] AATA 1463 (3 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ngoc My Thi Tran

VISA APPLICANT:  Mr Thai Quoc Tran

CASE NUMBER:  2305828

HOME AFFAIRS REFERENCE(S):          BCC2023/1140540

MEMBER:Member Nathan Goetz

DATE:3 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision of the delegate dated 1 March 2023 refusing to grant the visa applicant a Subclass 600 (Visitor) (Class FA) visa, and remits the visa application back to the delegate for reconsideration, with a direction that the visa applicant satisfies the following criteria:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 03 May 2024 at 5:07pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – intention to comply with visa conditions – all other relevant matters – travel history – business and property in Vietnam – family members and girlfriend in Vietnam – father and mother also granted visitor visas to Australia – 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 merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicant a Visitor (Class FA) visa.

   BACKGROUND

2. The visa applicant is a male citizen of Vietnam presently located outside of Australia.

3. On 14 February 2023 the visa applicant applied for the visa. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. The visa applicant applied for the visa in the Tourist stream.

4. On 1 March 2023 the delegate refused to grant the visa applicant the visa. The delegate found that the visa applicant did not satisfy cl 600.211. This clause provides the following:

   600.211

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a) 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; and

   (b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c) any other relevant matter.

5. The delegate decision record does not identify the conditions to which the visa would be subject. The Tribunal understands that in the circumstances of this visa application, the applicable conditions are provided by cl 600.611(3) as follows:

   ·     8101 – must not work in Australia

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

6. On 27 April 2023 an application was made by the review applicant to the Tribunal for review of the decision. The review applicant is a female citizen of Australia who is the visa applicant’s sister.

7. On 11 April 2024 the Tribunal wrote to the review applicant under s 360(1) of the Act and invited her to appear at a Tribunal hearing scheduled for 2:00pm on 26 April 2024 so she could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal also indicated that it wished to take oral evidence from the visa applicant. The Tribunal hearing was scheduled to occur via MS Teams which the Tribunal determined was appropriate in all the circumstances of the review.

8. On 16 April 2024 the Tribunal wrote to the review applicant and advised that the Tribunal hearing scheduled for 26 April 2024 was no longer a suitable date, and abridged the Tribunal hearing to 19 April 2024. The review applicant had been telephoned and consented to the abridgment to that date, but indicated that she wanted to talk to her husband about the proposed date. A later telephone call with Tribunal staff indicated that the review applicant did not consent to the Tribunal hearing being held on 19 April 2024, which was outside the prescribed period for invitation to a Tribunal hearing, meaning that the Tribunal hearing could only be held at an earlier time with the consent of the review applicant. Given this development, the Tribunal adjourned the Tribunal hearing from 26 April 2024 to 3 May 2024 and sent the review applicant notice of the rescheduled hearing on 17 April 2024.

9. On 3 May 2024 the review applicant and the visa applicant appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

10. In the ‘Response to hearing invitation form’ that the Tribunal sent out to the review applicant, the review applicant requested that the Tribunal take oral evidence at the Tribunal hearing from Mr Quoc Khoi Tran, who is the father of the visa applicant and the review applicant. The request indicated that their father would help the visa applicant to look after his business in Vietnam while he is away in Australia. The Tribunal requested that it be provided with a written statement from the father of the applicants before considering the request. The Tribunal was subsequently provided with a letter confirming the willingness of their father to manage and operate the business during the visa applicant’s stay in Australia and spoke to the father at the Tribunal hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this review is whether the visa applicant satisfies cl 600.211.

12. If the Tribunal finds that the visa applicant satisfies cl 600.211 the correct or preferable decision is to set aside the decision of the delegate refusing to grant the visa, and remit the visa application back to the delegate for reconsideration with a direction that the visa applicant satisfies cl 600.211.

13. If the Tribunal finds that the visa applicant does not satisfy cl 600.211 the correct or preferable decision is to affirm the decision of the delegate refusing to grant the visa.

14. According to the visa application form lodged on 14 February 2023, the visa applicant was born on 29 April 1990 in Soc Trang, Vietnam and is located in that country. He resides in Ward 4, Soc Trang, Vietnam. He provided a Vietnamese identity card in support of his identity, as well as his Vietnamese passport. At the Tribunal hearing, the visa applicant said that he was still located in Vietnam and had not travelled outside of that country since lodging the visa application.

15. In the visa application form, the visa applicant declared that he was unmarried. At the Tribunal hearing, the visa applicant told the Tribunal that he was in a relationship with a woman in Vietnam who is a citizen of that country. The visa applicant’s family and his girlfriend’s family support the relationship.

16. In the visa application form, the visa applicant indicated that he was applying for a visa in the tourist stream and that the purpose of his visit was a family visit. He did not intend to enter Australia on more than one occasion during the period granted by the visitor visa. He identified that he wished to enter Australia on 1 April 2023 and depart on 1 May 2023. He was not travelling with anyone else to Australia. At the Tribunal hearing, the visa application said that now that this period had passed, he wished to travel to Australia in June 2024 for one months, which would coincide with the birthday of one of the review applicant’s children in Australia.

17. In the visa application form, the visa applicant identified that he had the following non-accompanying members of his family unit who were not travelling with him to Australia.

    ·     His father, Mr Quoc Khoi Tran, who was born on 29 May 1968 in Vietnam. Department records show that on 18 February 2024 he applied for a visitor visa to come to Australia and that this was granted on 15 March 2024, but he has not yet travelled to Australia. At the Tribunal hearing, the visa applicant told the Tribunal that his father had been granted a visitor visa to come to Australia.

    ·     His brother, Mr Quoc Vinh Tran who was born on 9 March 1987 in Vietnam. Department records show that this person has never applied for a visa to come to Australia. At the Tribunal hearing, the visa applicant said that this brother was still in Vietnam.

18. The visa applicant confirmed that he was one of three siblings. Noting that the visa applicant had not identified his mother in the visa application form at all, the Tribunal presumed that she was deceased. However, at the Tribunal hearing the visa applicant told the Tribunal that his mother was alive and in Vietnam. He identified his mother as Ms Thi Thuy Truong, who was born on 9 September 1968. The visa applicant said that his mother was not declared in the visa application form because at the time he applied for the visitor visa, she was already in Australia. The Tribunal queried why, is this was the case, the visa applicant would not identify his mother as a contact in Australia. The visa applicant told the Tribunal this was because his mother was in Australia at that time on a visitor visa.

19. In the visa application form, the visa applicant identified that he had one contact in Australia, who is his sister, Ms Thi My Ngoc Tran, who was born on 19 April 1988 and resides at an address in Croydon, Victoria. The visa applicant identified this sister as an Australian permanent resident. She is the review applicant. Department records demonstrate that the review applicant arrived in Australia on 14 June 2015 holding a prospective spouse visa. She was granted a temporary partner visa on 7 August 2015 and a permanent partner visa on 19 June 2019, subsequently becoming an Australian citizen on 16 August 2023. At the Tribunal hearing, the review applicant told the Tribunal she remained together with her husband.

20. Concerning the mother of the visa applicant and the review applicant, the Tribunal was told that she had travelled to Australia three times. Department records demonstrate that the mother first entered Australia on 24 June 2018 on a visitor visa that was granted on 4 June 2018 and valid until 24 September 2018. She departed on 15 September 2018. On 10 November 2022 the mother entered Australia on a visitor visa that was valid until 10 October 2025. This visa allowed multiple entries into Australia. The mother departed Australia on 7 April 2023 and returned on 22 June 2023, before departing again on 17 January 2024. There is no evidence of the mother lodging a visa application to remain in Australia during any of those trips.

21. Included with the visa application form was a statutory declaration made by the review applicant on 16 February 2023. In that declaration, the review applicant declared that she wished her brother to visit her in Australia because she would like to show him around Australia. She declared that she would be responsible for the visa applicant’s accommodation and food while in Australia and that the visa applicant has the funds to cover the costs for his travel to Australia. She guaranteed that the visa applicant would follow the laws of Australia during his trip and that he would return to Vietnam.

22. In the course of the review, the review applicant provided a letter to the Tribunal. Her letter was addressed to criticising the delegate decision. As this is merits review of a decision, the delegate’s assessment of evidence and reasoning is irrelevant. The review applicant did, however, detail that she and her family returned to Vietnam in August 2019 for a visit, and she had not seen her brother since that time. She detailed his work as a small business owner in Vietnam and the fact that her father and older brother will assist to run the business while the visa applicant is in Australia. She noted that the visa applicant also receives income from a rental property in Vietnam. She also noted his travel to other countries.

23. In the visa application form, the visa applicant identified that he was self-employed with Quoc Hiep Private Enterprise from 24 July 2015. He provided a document in a language other than English that was identified as registration for this business. There was also a document that was in a language other than English that was identified as a tax document for the visa applicant. He also provided an account statement from Vietcombank dated 6 February 2023 showing various transaction for an account held in the name of the visa applicant, as well as a confirmation of balance statement from that bank for the visa applicant’s account.

24. In the visa application form, a document in a language other than English was submitted that showed what appeared to be a diagram of property. The Tribunal was provided with an English translation of this document in the course of the review, which shows that the applicant is the registered owner of house and land in Cu Lao Gung district, Soc Trang, Vietnam. The Tribunal was also provided with an English translation of a document showing that this property was transferred to the applicant under contract dated 6 June 2019. The Tribunal was also provided with the English translation of a rental contract for property owned by the visa applicant in Vietnam. The Tribunal was also provided with English translations of letters from the visa applicant’s previous employers in Vietnam to confirm his past employment. At the Tribunal hearing, the visa applicant confirmed that he is still self-employed with that business. The visa applicant said that his father will take the visa applicant’s duties at the business while the visa applicant is in Australia. The visa applicant’s father had provided a written statement to the Tribunal that this would occur, and the visa applicant’s father gave oral evidence consistent with this. The Tribunal was told that the plan was for the visa applicant to come to Australia and return to Vietnam, and the visa applicant’s father would travel to Australia at a later time, probably the end of the year as this would be when the visa applicant’s father would be able to travel because of his work commitments in agricultural work in Vietnam. This work was described as seasonal and allows time for the visa applicant’s father to look after the visa applicant’s business in Vietnam.

25. In the visa application form, the applicant was whether he understood that he would not be permitted to work in Australia on the visitor visa. He indicated he understood that. He was also asked whether he would undertake a course of study in Australia and he declared no. At the Tribunal hearing, the visa applicant said that he was not coming to Australia to work and that he was not planning on undertaking any study or training in Australia during the period of the visitor visa.

26. In the visa application form, the applicant declared that he had never lived outside of Vietnam for more than 3 consecutive months, that he had never been removed, deported or excluded from any country, had never overstayed a visa in any country, and has held visas to Thailand, Singapore, Japan and Korea. He declared that he had never not complied with visa conditions or departed outside a period of authorised stay and had never had a visa for any country refused or cancelled.

27. In the visa applicant’s passport, there are stamps for Vietnam on 31 July 2011, 3 August 2011, 10 October 2019, 14 October 2019, 25 October 2022, 19 January 2023, 25 January 2023, Singapore 3 August 2011. (unclear country) 10 October 2019, Thailand 25 October 2022, Japan 20 January 2023.

28. In the course of the review, the Tribunal was provided with photos of the individual passport stamps demonstrating the visa applicant’s travel history as follows:

    ·     Arrived in Thailand on 22 October 2022 and departed on 25 October 2022. At the Tribunal hearing, the visa applicant said that the purpose of this trip was tourism and that the visa applicant had no family in that country.

    ·     Arrived in Singapore on 21 July 2011 and departed on 3 August 2011. At the Tribunal hearing, the visa applicant said that the purpose of this trip was tourism and that the visa applicant had no family in that country.

    ·     Arrived in Taiwan on 10 October 2019 and returned to Vietnam on 14 October 2019. At the Tribunal hearing, the visa applicant said that the purpose of this trip was tourism and that the visa applicant had no family in that country.

    ·     Arrived in Japan on 20 January 2023 and departed on 25 January 2023. At the Tribunal hearing, the visa applicant said that the purpose of this trip was tourism and that the visa applicant had no family in that country.

    ·     Although no stamps demonstrated travel, the Tribunal was provided a copy of a South Korean visa issued to the visa applicant on 9 March 2020 and valid for 30 days. At the Tribunal hearing, the visa applicant said he did not travel to that country because of COVID.

29. At the Tribunal hearing, the visa applicant said that during these periods of tourism overseas, his father helped look after his business in Vietnam.

30. At the Tribunal hearing, the visa applicant told the Tribunal that he did not engage in any political activity in Vietnam. He is not, and has not previously been, a member of any political party. He does not have a religious belief and has not borrowed any money from loansharks. He has not had any problems with the Vietnamese Government or the Communist Party of Vietnam. The visa applicant told the Tribunal that he was not applying for the visitor visa to come to Australia because he planned to not return to that country once he arrived in Australia. The visa applicant said that the purpose of his trip to Australia was to see family and expressed a desire to travel to the United States of America in the future to see an aunty.

31. The visa applicant told the Tribunal that he had never been harmed in Vietnam because of his race, religion, nationality, membership of any group, political opinion, sex or any other reason. The visa applicant told the Tribunal that he does not fear harm in Vietnam because of his race, religion, nationality, membership of any group, political opinion, sex or any other reason.

32. The review applicant told the Tribunal that she last saw her brother in 2019 when she travelled to Vietnam. She told the Tribunal that her brother had no problems in Vietnam. She said that in the event the delegate required the visa applicant to be sponsored, she would be prepared to do so for $15,000. Noting her own migration history to Australia, the Tribunal asked the review applicant whether she had identified an Australian citizen or permanent resident to introduced to the visa applicant for the purpose of forming a relationship and lodging a partner visa. She said she had not done so.

    FINDINGS AND REASONS

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

    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)

34. The evidence is that the visa applicant has not previously travelled to Australia. Therefore, there is no Australian migration history to demonstrate whether the applicant has previously complied or not complied with visa conditions.

35. In these circumstances, this consideration is irrelevant to whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted.

    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)

36. The visa applicant gave oral evidence that he understood the conditions that would attach to the visitor visa if granted and that he intended to comply with those conditions. His declarations were consistent with the evidence provided in the visa application form acknowledging that he would have no right to work on the visitor visa and that he did not intend to undertake a course of study in Australia.

1. The Tribunal is satisfied that the visa applicant intends to comply with the conditions that would be imposed on the visitor visa. This is a factor that the Tribunal takes into account in finding that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted.

2. The Tribunal must also consider all other relevant matters (cl 600.211(c))

3. The evidence is that the visa applicant has a has travelled to several countries for tourism purposes and returned to Vietnam. The Tribunal is satisfied that this history shows the applicant is capable of travelling for temporary purposes and returning to Vietnam.

4. The evidence is that the visa applicant has a business in Vietnam, as well as property holdings. While a business can be closed and property holdings disposed of in the event a person decides not to return to a business or property, there is no evidence that the visa applicant has any such intention. As such, his business and property will act as an incentive to return to Vietnam, as will the presence of the balance of his family members and girlfriend whom he intends to marry.

5. The visa applicant gave evidence to the Tribunal about his person circumstances in Vietnam, including evidence that would be relevant to whether the visa applicant was using the visitor visa to escape Vietnam. The evidence provided by the visa applicant and the review applicant suggests that the visa applicant has no trouble in Vietnam and is therefore likely to return to that country at the conclusion of his visit to Australia.

6. The evidence is that the visa applicant will not work in Australia, because he will be financially supported through accommodation and food by the sponsor. The evidence is that the visa applicant has enough money to cover his expenses in Australia for costs ancillary to this accommodation and food expenses.

7. The Tribunal is conscious of the fact that if the visa applicant is granted a visitor visa, this will mean that the visa applicant, his mother and father will all possess visitor visas to come to Australia at the same time. However, the mother has come to Australia on multiple occasions and returned to that country. The evidence is that the father will not come to Australia at the same time as the visa applicant, because the father is required to mind the visa applicant’s business in Vietnam during the visa applicant’s absence. However, even if the visa applicant, his mother and father all came to Australia at the same time, the Tribunal is satisfied that they are likely to return to Vietnam at the end of any visit to Australia, given the evidence presented about the visa applicant’s personal circumstances in Vietnam.

8. The Tribunal was initially concerned about the failure to identify the visa applicant’s mother in the visa application form. The Tribunal presumed that the mother was deceased, because she was not detailed. The Tribunal was therefore surprised to find out that the mother was in Australia at the time of the visa application by the visa applicant, and wondered whether the identity and location of the mother was hidden because the visa applicant thought that this may have a negative impact on the visa application. However, the Tribunal is persuaded in the circumstances that there was no attempt to hide the details of the mother, and accepts the explanation that her omission from the form was because she was not an Australian citizen/permanent resident which is what the visa applicant assumed was required for the section about contacts in Australia. The fact that the visa applicant told the Tribunal at the Tribunal hearing about the mother being in Australia at the time of visa application suggests that he is a truthful witness and did not wish to hide anything. Had the visa applicant said that his mother was deceased, or did not detail that she was in Australia, the Tribunal would have been none the wiser unless the Tribunal checked Department records. In those circumstances, the Tribunal is satisfied that there has been no deliberate attempt to hide the details of the mother or the fact that she was in Australia.

9. Further, the fact that the visa applicant had disclosed that his father held a visitor visa to come to Australia (which had been applied for and granted after the visa applicant’s visa application) demonstrates his honestly. He was not to know that the Tribunal already knew that information from searching the Department’s records.

   CONCLUSION

10. The Tribunal assesses the visa applicant to be truthful about his intentions for visiting Australia. The Tribunal is satisfied that the visa applicant has sufficient incentives to return to Vietnam at the conclusion of his visit to Australia.

11. 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.

12. Therefore, the Tribunal finds that the visa applicant satisfies cl 600.211.

    DECISION

13. The Tribunal sets aside the decision of the delegate dated 1 March 2023 refusing to grant the visa applicant a Subclass 600 (Visitor) (Class FA) visa, and remits the visa application back to the delegate for reconsideration, with a direction that the visa applicant satisfies the following criteria:

    ·     cl 600.211 of Schedule 2 to the Regulations.

    Nathan Goetz

    
    

    Member