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0906902 [2010] MRTA  704  (26 March 2010)

Last Updated: 6 April 2010

0906902  [2010] MRTA 704  (26 March 2010)

DECISION RECORD

REVIEW APPLICANT: Mrs Thi Nhan Nguyen

VISA APPLICANT: Mr Ngoc Linh Nguyen

MRT CASE NUMBER: 0906902

DIAC REFERENCE(S): CLF2009/108624

TRIBUNAL MEMBER: Peter Tyler

DATE: 26 March 2010

PLACE OF DECISION: Melbourne

DECISION: The Tribunal remits the application for a Sponsored (Visitor) (Class UL) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 679 (Sponsored Family Visitor) visa:

• cl.679.224 of Schedule 2 to the Regulations
  

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 Immigration and Citizenship to refuse to grant the visa applicant a Sponsored (Visitor) (Class UL) visa under s.65 of the Migration Act 1958 (the Act).
2. The visa applicant applied to the Department of Immigration and Citizenship for a Sponsored (Visitor) (Class UL) visa on 21 July 2009. The delegate decided to refuse to grant the visa on 19 August 2009 and notified the visa applicant of the decision and his review rights by letter dated 19 August 2009.
3. The delegate refused the visa application on the basis that the visa applicant did not satisfy cl.679.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the visa applicant’s intention to visit Australia was genuine.
4. The review applicant applied to the Tribunal on 25 August 2009 for review of the delegate’s decision.
5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(5)of the Act. The Tribunal finds that the review applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

6. The Sponsored (Visitor) (Class UL) visa contains the Subclass 679 (Sponsored Family Visitor) visa and the Subclass 459 (Sponsored Business Visitor) (Short stay) visa: item 1217A of Schedule 1 to the Regulations. The visa applicant has made an application only in respect of the Subclass 679 visa.
7. The Subclass 679 visa is for people seeking to enter Australia for the purposes of visiting an Australian citizen or Australian permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the visa applicant, or for a purpose other than a purpose related to business or medical treatment. This visa subclass allows a relative (as defined in r.1.03 of the Regulations) or another permitted party (as specified in cl.679.214 of Schedule 2 to the Regulations), to sponsor the visa applicant. The criteria for a Subclass 679 visa are set out in Part 679 of Schedule 2 to the Regulations.
8. Relevantly to this matter, a primary criterion to be met at the time of decision is that the visa applicant satisfies the Minister that the expressed intention of the visa applicant only to visit is genuine: cl.679.224.

CLAIMS AND EVIDENCE

9. The Tribunal has before it the Department’s file relating to the visa applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.
10. The review applicant appeared before the Tribunal on 12 November 2009 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Vu Van Chuong Nguyen, a nephew of the review applicant. . The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
11. The review applicant was also represented by Mr Vu Van Chuong Nguyen in relation to the review. The representative attended the Tribunal hearing.
12. The review applicant told the Tribunal that she has three siblings all of whom live in Vietnam and that she is the only member of her immediate family living in Australia.
13. She told the Tribunal that the visa applicant, her brother has a wife and three children living in Vietnam and that his reason for coming to Australia is to visit her and her family. The visa applicant is not bringing his wife because of the financial difficulty in sponsoring a visit for the two of them.
14. The review applicant said that she has sponsored her younger sister to visit Australia on three occasions and her sister has always complied with her visa conditions.
15. Her younger brother has been sponsored by his daughter to visit Australia and he has complied with his visa conditions.
16. The review applicant said that this is her second attempt to sponsor the visa applicant and that on the first occasion the application was refused because the visa applicant had withdrawn funds from his bank account.
17. The application form for the application under review was filled out by an agent in Vietnam who answered question 39 incorrectly. The visa applicant is unable to speak, read or write English and was unable to detect the error.
18. According to the review applicant, the visa applicant is a trader in Vietnam and owns his own business and house.
19. The review applicant said that the visa applicant only wishes to visit Australia on this one occasion to see her and her family especially as their mother died recently.
20. Mr Vu Van Chuong Nguyen confirmed the evidence of the review applicant concerning the error on the application form and told the Tribunal that he was the person who arranged and filed the documents. He said that the name of the agent in Vietnam was Trung Tien Dung and that he would obtain a letter from the agent confirming the circumstances of the form’s completion.
21. On 26 November 2009 the review applicant provided the Tribunal with a letter from Mr Truong Tien Dung, Lawyer stating that the application form was filled out by his office and that the error in the form was a mistake of that office and not of the visa applicant.

FINDINGS AND REASONS

22. As noted above, the issue in this matter is whether the Tribunal is satisfied that the visa applicant’s intention to only visit Australia is genuine as required by cl.679.224.
23. The reason why the delegate was not satisfied that the visa applicant’s intention to visit Australia was not genuine was that he had provided incorrect information on his application form. Whilst the accuracy of information on the forms is important and errors cannot easily be excused, the Tribunal found the review applicant and her nephew, Mr Nguyen to be credible witnesses and accepts their explanation for the error. Further, the Tribunal has no reason to doubt the veracity of the letter from the lawyer, Mr Truong Tien Dung which verifies the explanation for the error.
24. As to the reason for the visa applicant’s intention to visit Australia, the Tribunal accepts that his intention to visit his sister, the review applicant, and her family is logical given that other sibling have made such visits. The Tribunal notes that the other sibling have complied with their visa conditions.
25. For the above reasons the Tribunal is satisfied that the visa applicant’s intention only to visit Australia is genuine and finds that the visa applicant does satisfy the requirements of cl.679.224.

CONCLUSIONS

26. For the reasons given above the Tribunal finds the visa applicant satisfies the requirements of cl.679.224.

DECISION

27. The Tribunal remits the application for a Sponsored (Visitor) (Class UL) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 679 (Sponsored Family Visitor) visa:
    • cl.679.224 of Schedule 2 to the Regulations
      

Peter Tyler Date: 26 March 2010
Member