Tran (Migration)

[2024] AATA 2202

Tran (Migration) [2024] AATA 2202 (3 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Uyen Thi Tran

VISA APPLICANT:  Mr Dinh Be Tran

CASE NUMBER:  2302384

HOME AFFAIRS REFERENCE(S):          BCC2023512835

MEMBER:Tania Flood

DATE:3 March 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 March 2024 at 3:11pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – visiting family – visa applicant is only intending to visit Australia for a maximum of two weeks – applicant is engaged in stable, full-time employment – only child is residing in Vietnam – satisfied that the visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 8 February 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 30 January 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 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 the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The visa was refused on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia.

5. The review applicant appeared before the Tribunal on 21 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   Application for the Visitor visa

7. According to information contained in the application for the Visitor visa the visa applicant is a fifty-five-year-old, Vietnamese citizen from Da Nang.  He is divorced and has an eighteen- year-old daughter who will remain behind in Vietnam.   He requested a stay of up to three months to visit his sister.   He has been employed as a Consultant with Trang Phuong Linh Company Limited since 1 January 2022.  He has savings to support his travel to Australia and his sister will provide him with accommodation during his stay.

8. The following documentation was provided to the Department in support of the application:

   -An approved application for leave addressed to Trang Phuong Linh Company Limited dated 27 December 2022.

   -A certificate of land use right, housing ownership and other assets associated with the land dated 5 December 2019 indicating the visa applicant has a parcel of residential land in an urban area and private house.

   -Copy of the visa applicants Identity Card.

   -Confirmation of the visa applicant’s employment with Trang Phuong Linh Company Limited which indicates he commenced his employment as a Salesman on 16 January 2022 and receives a salary of 6,000,000VND per month.

   -Contract of Employment with Trang Phuong Linh Company Limited.

   -Birth Certificate.

   -Household Registration Book.

   -A letter of invitation from the review applicant.

   -Copy of passport.

   Application for review

9. The Tribunal received a letter from the visa applicant on 21 February 2023 explaining that the purpose of the visit is to see his sister and her children as it has been 18 years since she travelled to Vietnam to see the family.  He states he would like to visit Australia for 2 weeks.  He states he has savings to cover the cost of his stay in Australia and that he owns a house in Da Nang where he resides.   He argues that he has a house, a job and a daughter to return to in Vietnam.  He adds that he does not speak English and is more comfortable living permanently in Vietnam.  He informs that he visited Bali for a week in January 2023.

10. The Tribunal received a letter of invitation from the review applicant which states that she is the younger sister of the visa applicant and has been living in Australia for 25 years.  She states that as a busy single mother of two children it is hard for her to travel to see her family in Vietnam.  She further notes that her children are still studying.  She states that she owns a house and will be very happy to support her brother with accommodation in Australia.  

11. On 12 February 2024 the review applicant emailed the Tribunal advising that she has been resident in Australia since 1998 and has over the years successfully invited several family members including siblings and nieces (names and dates of birth provided), to visit Australia and none of these family members have violated any rules during their stays in Australia.  She states that she is excited to extend an invitation to her brother to visit her for two weeks.  She notes he has his own house and employment in Vietnam and is leading a comfortable life there.

12. The following additional documentation was provided to the Tribunal in support of the application for review:

    -Evidence of home ownership of the review applicant.

    -Bank statement of the review applicant.

    -Account balance confirmation for the visa applicant showing a balance of USD10,143.70.

    -A photograph of the visa applicant.

    -Birth Certificate of the visa applicant’s daughter.

    -Birth Certificate of the review applicant.

    -Copy of review applicant’s Vietnamese passport.

    -Updated account balance of the visa applicant showing a balance of USD11,544.68.

    -Updated, approved application for leave for a period of two weeks made by the visa applicant on 3 January 2024.

    -Confirmation of the visa applicant’s employment with Trang Phuong Linh Company Limited which indicates he commenced his employment as a Salesman on 16 January 2022 and receives a salary of 10,000,000VND per month (dated 3 January 2024).

    Tribunal hearing

13. The Tribunal heard evidence in support of the application from the review applicant.  The visa applicant could not be reached by telephone on the day of the hearing.  The review applicant’s testimony is summarised as follows:

14. She married an Australian citizen and  subsequently obtained  Australian citizenship.  She divorced about eight or nine years ago.   She has two children who were born in Australia.  They are aged eighteen and twenty-three.  She and the children live together in her own home. 

15. She had a beauty salon and coffee shop business previously.  She sold her business last year as she developed a medical problem with her foot.  She has commenced study toward a childcare qualification.  She is currently living off the profits of the sale of her business.   Her son is working and her daughter has just started her university degree. 

16. She has one sister and three nieces residing in Australia.  Her grandparents are deceased as is her father.  Her mother is a Canadian citizen and lives in Canada.  Three of her siblings reside in Canada and two live in the USA. 

17. She visited Vietnam in January 2024 for around two weeks.  Prior to that she returned in 2023 but before that it had been many years since she returned. 

18. She stated that her brother does not want to relocate overseas as he has his daughter in Vietnam.  He has not visited his relatives in either the USA or Canada although they sometimes visit him.  She thought he had taken a holiday in Singapore last year travelling with her niece who lives in Australia and a brother-in-law. 

19. Her brother bought his own home in Da Nang where he lives by himself.  Prior to starting his current job she thought he worked as a driver for a government agency. 

20. Her brother’s daughter lives in Quy Nhon city which is about four to five hours from Da Nang. 

21. If her brother is granted a Visitor visa she wants to show him around Sydney.  She said that most of her family members have visited Australia but he has not.  She provided details of three family members she has sponsored to visit Australia. 

22. Her brother only intends to visit Australia for one or two weeks in accordance with his annual leave. 

23. Her brother is a Buddhist.  He is not involved in any political activity in Vietnam and nor is she involved with any political groupings opposed to the current Vietnamese government in Australia.

24. Her siblings in the Canada and the USA have sponsored other family members to permanently reside in those countries but her brother in Vietnam has never wanted to migrate. 

25. She is willing to provide a security bond in order to facilitate the grant of the visa.

    Post-hearing submission

26. On 28 February 2024 the review applicant provided the following:

    -Evidence of the visa applicant’s travel to Indonesia in 2023.

    -A translated letter from the Director of Trang Phuong Linh Co Ltd dated 22 February 2024 confirming that the applicant commenced work with the company on 16 January 2022 earning 10,000,000 VND per month and that has his salary increases annually depending on performance.

    -Copy of the visa applicant’s daughter’s birth certificate.

    -Screenshots of evidence of recent communications between the visa applicant and his daughter.

    -Copy of the visa applicant’s passport.

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. 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.

28. 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 Tourist stream may be granted: cl 600.221 and cl 600.222.

29. 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)).

30. The visa applicant has never visited Australia.  The Department’s records indicate the review applicant entered Australia in 1998 holding a Partner visa.  She was granted a BC 100 Partner visa on 31 January 2001.  She is now an Australian citizen.  The records reveal no non-compliance with visa conditions on her part. 

31. 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(2)):

    ·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.

32. It is claimed, and the Tribunal accepts, that the visa applicant is only intending to visit Australia for a maximum of two weeks. The available evidence supports that the visa applicant is engaged in stable, full-time employment and has been granted annual leave to that affect to visit Australia.  The evidence further supports that he has personal savings adequate to support a short stay in Australia.  In the circumstances, the Tribunal is satisfied that the visa applicant will not and has no need to work in Australia if he is granted a Visitor visa.  Given his intended short stay in Australia the Tribunal is also satisfied that he will not engage in study or training in Australia for more than 3 months if he is granted a Visitor visa.  The Tribunal is satisfied the visa applicant will comply with conditions 8101 and 8201 if he is granted a Visitor visa.

33. The visa applicant’s intention to comply with conditions 8503 and 8531 is discussed below in relation to whether he genuinely intends to stay temporarily in Australia.

34. The Tribunal acknowledges that the visa applicant is the last remaining sibling in Vietnam but was persuaded by the review applicant’s oral testimony that unlike his other siblings he is happy to remain living in Vietnam.  According to the review applicant a significant reason for his wish to remain living in Vietnam is the presence of his daughter. It is claimed, and the Tribunal accepts based on the available evidence, that the visa applicant and his daughter maintain a close relationship despite that they do not live in the same city.  While the visa applicant has close family living in Australia it does not consider that these family ties outweigh his daughter’s presence in Vietnam.  The Tribunal accepts the visa applicant will be willing to return to Vietnam after a short visit to Australia due to the fact his only child is residing there.

35. As noted above, it is accepted that the visa applicant is in stable employment and the evidence further supports that his economic circumstances are relatively stable.  He has personal savings and he has produced evidence of home ownership.  The Tribunal is satisfied that his financial situation will not dissuade him from returning to Vietnam after a short visit to Australia.

36. While it is acknowledged that the review applicant recently visited her brother in Vietnam the evidence shows that he has extended family in Australia and the Tribunal considers it reasonable that he would also want to visit them in Australia.  He is only proposing a two week visit to Australia and there is nothing before the Tribunal to indicate that he will not depart Australia before his visa ceases.  The Tribunal has considered the migration records of the review applicant and the family members she has sponsored to visit Australia and these records do not raise any issues of concern regarding visa compliance.  Additionally, the visa applicant has produced proof of recent travel to and from Indonesia.

37. The Tribunal has also placed weight on the review applicant’s willingness to provide a security bond in order to facilitate the grant of the visa.

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

39. 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

40. 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.

    Tania Flood
    Member