Nguyen (Migration) [2019] AATA 2493 (29 May 2019)

Last Updated: 13 August 2019

Nguyen (Migration) [2019] AATA 2493 (29 May 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mrs Ngoc Quynh Anh Nguyen

CASE NUMBER: 1804573

HOME AFFAIRS REFERENCE(S): BCC2018/578983

MEMBER: Ian Garnham

DATE: 29 May 2019

PLACE OF DECISION: Melbourne

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

Statement made on 29 May 2019 at 12:08pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream– intentions to stay permanently –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222

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 on 5 February 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
2. The visa applicant applied for the visa on 31 January 2018. 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 (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 delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because they were not satisfied that the visa applicant genuinely intends to stay temporarily in Australia.
5. The applicant appeared before the Tribunal on 24 May 2019 to give evidence and present arguments. The hearing was also conducted in conjunction with a hearing of the visa applicant’s spouse, Mr Duy Bao Nguyen’s case, who at the same time as the visa applicant; independently applied for a Visitor (Class FA) visa (1804597). This is because the same and similar facts apply to this matter. The Tribunal also received oral evidence from the visa applicant’s spouse.
6. The applicant was represented in relation to the review by her registered migration agent. At the hearing the registered migration agent provided a history of the visa applicant’s husband’s migration background titled, ‘Chronological history since the applicant’s arrival in Australia’^[1].
7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Background:

8. The visa applicant’s husband is a Vietnamese citizen and first came to Australia on 03/08/2006 on a subclass 573 Higher Education Sector visa. He was granted a further subclass 573 Higher Education Sector visa on 20/12/2006. On 19/12/2012 he was granted a subclass 485 Temporary Graduate visa that ceased to have effect on 19/06/2014.
9. The visa applicant is also a Vietnamese citizen and first came to Australia as a secondary applicant to her husband’s subclass 573 Higher Education Sector visa on 27/12/2013. They married in the middle of 2015 and their child was born in November 2015.
10. The visa applicant’s husband was granted a further three subclass 573 Higher Education Sector visas and on 17/03/2017 he was granted a subclass 600 Tourist visa that ceased to have effect on 15/06/2017.
11. On 30/03/2017 the visa applicant was also granted a subclass 600 Tourist visa that ceased to have effect on 15/06/2017.
12. On 16/08/2017 the visa applicant was granted a subclass 500 Student visa (on the basis that her husband was the student) that ceased to have effect 31/01/2018.
13. Since 31/01/2018 the visa applicant has been on a subclass 010 Bridging A visa while the application, that is the subject of this review, is processed.

CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

The purpose:

15. In the present case, in the original application the visa applicant sought the visa for the purposes of staying lawfully in Australia to; Accompany my husband during his stay in Australia. She requested that the stay be for up to 12 months.
16. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.
17. Through no fault of her own the currency of the application for the visa applicant has now changed. Her husband has now completed his Honours course in Engineering and almost 18 months have passed. At the hearing the visa applicant said that her visa is dependent on her husbands and that she merely wants to stay with her husband and family.
18. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

Consideration:

19. 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)).
20. There is no evidence before me that the visa applicant has failed to comply with any of the conditions of her visa.
21. 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.
22. At the hearing the visa applicant confirmed that she does not work and currently conducts home duties and cares for their three year old child. I consider that the visa applicant and her husband were credible and truthful witnesses and that based on their evidence, if the visa was to be granted I consider it highly unlikely that the visa applicant would attempt to work or conduct study for longer than 3 months.
23. However by the evidence of the applicants it is clear that their intention is to use the granting of any tourist visa as an opportunity to apply for a permanent visa, because they seek to remain permanently in Australia. This matter is more fully discussed in the visa applicant’s Decision Record.^[2]
24. The Tribunal has also considered all other relevant matters (cl.600.211(c)).
25. I note the visa applicant came to Australia in December 2013. She travelled overseas for approximately one month in May 2015 with her husband. The visa applicant has otherwise remained permanently in Australia for approximately 5½ years. The past migration details of the visa applicant are also not commensurate with a genuine tourist who intends to stay temporarily to conduct tourist activity.
26. For the above reasons 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 finds that the requirements of cl.600.211 are not met.

DECISION

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

Ian Garnham
Member

---

^[1] At F: 63 (AAT-1804597)
^[2] 1804597