On 20 July 1993 the applicant sought review from the Migration Internal Review Office (MIRO). On 9 September 1993 the MIRO officer informed the applicant that the original decision to refuse the grant of a visa would be affirmed.

On 6 October 1993 the applicant lodged an application for review with the Tribunal.

As a result of the coming into force of the Migration Reform Act 1992 on 1 September 1994 Australian migration law has undergone significant changes. In accordance with regulation 22 of the Migration Reform (Transitional Provisions) Regulations, the visa applicant's application in this case (if successful) will now result in the grant of a transitional (permanent) visa under the new law. For most purposes this will resemble the visa that would have been granted under the law in force before 1 September 1994. However, Division 2 of Part 2 of the Migration Act 1958 (the Act) as in force before 1 September 1994 - which relates to the grant or refusal of visas - and the regulations made for the purposes of that Division will continue to apply to the principal's application. The regulations which are applicable in this case are therefore the Migration Regulations 1993 (the Regulations).

The criteria that needed to be satisfied for an entitlement to a Class 683 ( close family visitor) visa, in force at the time the principal lodged his visa application are set out in subdivisions 683.32 and 683.33 of Schedule 2 to the Regulations. These subdivisions provided as follows:

683.32 Criteria to be satisfied at time of application ( visa-before entry)

683.321 The applicant seeks the visa in order to obtain temporary entry for the purpose of visiting an Australian citizen, or an Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant.

683.322 The applicant has adequate funds for personal support during the period of the visit.

683.323 The period of stay in Australia proposed in the application exceeds 3 months.

683.33 Criteria to be satisfied at time of decision (visa- before entry)

683.331 The applicant continues to satisfy the criteria specified in clauses 683.321 to 683.323.

683.332 The applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine.

683.332A The applicant satisfies the Minister that the applicant does not intend to become a permanent resident of Australia.

683.333 The applicant satisfies public interest criteria 4001 to 4005, 4011 and 4012.

683.334 If the applicant has previously been in Australia, the applicant satisfies special re-entry criteria 5001, 5003, 5005, 5007, 5009 and 5010.

683.336 The Minister is satisfied that the grant of the visa would not prejudice the rights and interests of any person who has custody or guardianship of, or access to, the applicant."

Clause 683.333 refers to public interest criterion 4011 which is in the following terms:

"4011. (1) If the applicant is affected by the risk factor specified in subclause (2), the applicant satisfies the Minister that, having regard to the applicant's circumstances in the applicant's country of usual residence, there is very little likelihood that the applicant will remain after the expiry of any period during which the applicant might be authorised to remain after entry.

(2) An applicant is affected by the risk factor referred to in subclause (1) if:

(a) during the period of 5 years immediately preceding the application, the applicant has applied for a visa or entry permit for the purpose of permanent residence in Australia; or

(b) the applicant has one or more relevant characteristics in common with a class of persons shown by statistics prepared by the Secretary from the movement records kept by Immigration to be persons who have remained in Australia after the expiry of the respective periods of time during which they were authorised to remain in Australia.

(3) For the purposes of subclause (2), a relevant characteristic is any of the following characteristics:

(g) the place of lodgment or posting of the application for that visa.

In addition to the legislative criteria set out above, the (then) Minister for Immigration, Local Government and Ethnic Affairs issued two Policy Directions on 13 July 1992 under section 179 of the Migration Act 1958 ( the Act) which entitles the Minister to give "general directions" to decision-makers: see Re Deng (IRT Decision No. N91/00418, delivered 23 September 1991) for a full discussion of the Policy Directions and further observations made in Re Jiang (IRT Decision No. V91/01253, delivered 13 May 1992).

Policy Direction No. 1 is concerned with the criterion of a "genuine visit" and Policy Direction 2 with the criterion relating to whether the applicant "has adequate funds for personal support during the period of the visit". Apart from listing factors regarded as indices of these matters, the Policy Directions also deal with the general approach to be adopted in determining applications for close family visitor visas. Both Directions caution decision-makers on the weight to be accorded to " assertions, assurances or declarations" by or on behalf of an applicant which are said to be "not necessarily sufficient evidence" of bona fides or adequacy of funds.

A major feature of the first Direction is the list of "relevant considerations" with respect to determining whether an applicant intends a " genuine visit". Briefly, these comprise the level of personal, financial, employment and other commitments which may induce return to the country of usual residence; circumstances which may not induce return to the country of usual residence such as military service and unemployment; credibility in terms of character and conduct; the purpose and duration of the visit and other plans relating to the visit relative to an applicant's personal circumstances including any assistance available from the nominator;

circumstances indicating a likelihood of an applicant engaging in employment in Australia; history of compliance with immigration law; and the record of an applicant's nominator in relation to migration matters.

It should be noted that the second Direction clarifies the content and meaning of adequate funds for an applicant's support during the proposed visit which the Direction states is to include potential medical and hospital expenses. Finally, any inquiries, investigations and deliberations with respect to the above matters, must be "...balanced having regard to the Government's commitment to quick response on visitor applications and resources available to meet that commitment."

The principles set out by the Tribunal in Re Saulog (IRT Decision No.V90/00053 delivered 9 November 1990), regarding onus of proof are also applicable. It was observed in that case, that the traditional rules relating to onus of proof in adversarial systems have no role to play in the process of administrative decision making, which includes the process through which this Tribunal must go to reach a decision. Nonetheless, while there is no onus, in the legal sense, upon applicants to "prove" their entitlement to a visa, there may be occasions when an applicant bears a "common sense" onus of making information in his or her knowledge available to the decision maker or at least of offering a beginning of proof in those matters which will assist in reaching a decision in the applicant's favour. See Re Holbrook and Australian Postal Commission ( 1983) 5 ALN 35; McDonald v Director-General of Social Security [1984] FCA 57; (1984) 6 ALD 6.

The provisions of regulation 9A, which are now reflected in clause 4011 in Schedule 4 of the Regulations, create what is described as a "risk factor" for any applicant for a visa who has applied for permanent residence in Australia in the previous 5 years; or for any applicant who has "one or more relevant characteristics" (based on nationality, marital status, age, sex, and place of lodgement of the visa in common with a class of persons shown by Departmental statistics to have overstayed their temporary visas.

In this case, the principal possesses relevant characteristics pertaining to the "risk factor".

The evidence in this case is based on limited material held by the Tribunal. The Tribunal has misplaced the Tribunal file which contained the original application and supporting documentation and also the review application and any supporting documentation. In these circumstances, this decision is based on the evidence given under oath and taped at a formal hearing held in Melbourne on 21 March 1994 and also on working notes held by the Tribunal member.

Oral evidence was given to the Tribunal by the review applicant Kim Phuc Ngo and her brother Phuong Dong Ngo.

The review applicant arrived in Australia in 1988. She became an Australian citizen on 28 May 1992. She is widowed with two dependent children in their early twenties. One of her children is studying and the other is not employed. The review applicant was previously employed as a sewing machinist, however, because of illness she has been unable to continue working. At the time of hearing she was undertaking English language studies. Her income consists of the unemployment benefit and she lives with her two children in a three bedroom Ministry of Housing accommodation. A statutory declaration was submitted by the review applicant, sworn on 4 March 1993 which stated that she would provide full financial support, including meeting medical expenses if required by the visitor.

She told the Tribunal that she did not have savings, however her brother Phuong Dong Ngo, who resides in Melbourne would in fact be providing the financial support for the visitor.

The Tribunal was told that she is supporting and pursuing the visitor application because she has time on her hands as opposed to her brother, Phuong Dong Ngo who is very busy with his business. She also has one other brother in Australia and two cousins. The rest of her family live in Vietnam. They consist of her mother, four sisters and three brothers, one of whom is the visa applicant. The Tribunal asked if she invited the visa applicant to visit Australia. She replied that her brother initiated the idea of visiting. She said that he wanted to see family members in Australia and to visit the country. She said that he particularly wanted to see the country as friends had gone back to Vietnam and had told him about Australia.

The evidence is that the visa applicant was born in 1954. He is married and indicated on the supporting documentation that he has three children. He also stated that he was self employed. The review applicant has told the Tribunal that her brother is an electrician who has his own business. She was unable to tell the Tribunal about the sort of work her brother undertakes, only that he "fixes things" and does not employ anyone else. In terms of assets and savings that her brother might have, she stated that he owned his own home and "earns a living". However, she was not able to give any further details.

The visa application is in relation to a six month visitor visa. The Tribunal put to the review applicant that this appeared to be a long time to be on a visit away from one's family and also one's own business. She replied that six months was required so that her brother has enough time to visit with his family in Australia and also visit other states. She also claimed that in relation to his wife and children that her brother's parents-in-law will stay with his wife and children. His wife does not have paid employment but she looks after the children. She added that he gets support from his in-laws. In terms of the operations of his business during the duration of the visit, she said that as it is run from his home, it would not operate for that period.

In written and oral submissions to the Tribunal the review applicant claimed her brother had two children. The visa applicant however in his application's supporting documentation has stated that he has three children, born in 1981, 1984 and 1987. This discrepancy was put to the review applicant and she replied that she was not aware of the third child. She said that they sometimes communicated by telephone every three to four months. She then said that she only telephoner her brother when it was necessary to talk to him about important matters, such as their ill mother. She said at the time of the hearing that she had not spoken to her brother in quite a long time.

The Tribunal also heard evidence from Mr Phuong Dong Ngo. He is the review applicant's brother. He arrived in Australia in 1987 and is an Australian permanent resident. He is single and has no dependents. He supports the visa applicant's visit to Australia and told the Tribunal he is able to financially support his brother during his stay. He told the Tribunal that he would be pleased to see his brother as he has not seen him for a number of years. He said that he is in contact with his brother every four or five months either directly by telephone or through the review applicant. He also said that he was not aware of his brother's financial position and nor was he aware of his brother's third child.

When asked by the Tribunal if he had made any plans for his brother's visit, he replied that he would like to take his brother to Sydney and other parts of Australia. He said that he has a car and that his weekends are free and that he can re-arrange his business so as to have less work during the period of the visit.

Evidence was provided to the Tribunal by Mr Phuong Dong Ngo in the form of certificates of balance with the National Australia Bank, with an amount of $7,798.14 and Commonwealth Bank with an amount of $3,431.37. Mr Ngo has his own clothing assembling business, employing a few people.

Both the review applicant and her brother told the Tribunal that the visa applicant would not work or study while in Australia. The review applicant stated that she would like to visit her family in Vietnam, however she could not afford to go there. She also stated that she has previously sponsored for migration two cousins from Vietnam. They are now permanent residents of Australia.

The Tribunal sets out its conclusion on the basis of the evidence available, on the points contained in Policy Direction No 1 and No 2.

1. The level of personal, financial, employment and other commitments which may induce return to his or her usual country of residence.

The visa applicant is married with three young children. No detailed financial information regarding the visa applicant was made available to the Tribunal. In terms of employment, the visa applicant claims to be self-employed, however no evidence was available to support this claim.

On the evidence, it appears to the Tribunal that the only commitment that may induce return to Vietnam is that of his immediate family.

2. Circumstances which may nor induce return to his or her usual country of residence such as military service, unemployment.

There appears on the available evidence no such circumstances, however, no concrete evidence was in existence to support the claim that the visa applicant was self-employed. In the absence of any other evidence, the argument that the visa applicant could leave his business for 6 months and then resume leaves the Tribunal in doubt about the existence of the business he was allegedly involved in.

3. Credibility of the applicant in terms of character and conduct.

There are no credibility issues in relation to the visa applicant.

4. The purpose of the applicant's visit, the duration of stay proposed and any other plans which the applicant has made for the visit, relative to the applicant's personal responsibilities and financial means and earnings and the level of support and assistance available to the applicant from person or persons nominated by the applicant.

Based on the evidence of the review applicant and the review applicant's brother, the Tribunal is satisfied that there are sufficient funds to support the costs of travel and hospitality for the period of the proposed stay.

The Tribunal notes that the purpose of the stay is to visit family and to tour some of the country. The Tribunal also notes that the visa applicant initiated the proposal to visit. However, the Tribunal finds that the duration of stay proposed, that is six months, to be incongruous with the stated purpose of the visit, particularly given that he has a family in Vietnam dependent on him and that he can allegedly leave his business for a six month period. In the absence of evidence to show how his business can sustain his absence and how his family will be financially supported over the proposed six month visit, the Tribunal holds doubts about the viability and genuineness of such a visit.

5. Information disclosed in the application or otherwise obtained which indicates a likelihood beyond mere suspicion that the applicant will engage in work in Australia.

There is no such direct information before the Tribunal.

6. History of compliance with immigration law by the applicant.

There is no previous history of travel outside of Vietnam by the visa applicant.

7. Record of the sponsor/nominator in Australia with respect to persons previously sponsored, nominated or supported for entry to Australia.

In order to grant this visa, the Tribunal must be satisfied that there is very little likelihood that the applicant would overstay his authorised period of stay in Australia, which is, as documented in previous decisions of the Tribunal, a higher test than that of the 'balance of probabilities' which applies to the other criterion in this visa class.

In this case, the Tribunal has considered on the one hand the visa applicant's personal and financial situation in Vietnam against the stated reasons for the visit and the period of stay sought.

The Tribunal notes in the applicant's favour the fact that he has a wife and three dependent children in Vietnam. However, the evidence (or the lack of evidence in many instances in this case) relating to the visa applicant's financial and employment situation, is not convincing to support the stated purpose of the visit, together with the period sought.

The Tribunal, based on the available evidence before it, is unable at the time of this decision, to be satisfied that the visa applicant meets the higher test of 'very little likelihood' of overstaying any authorised period of stay. This is not to say that he could not satisfy these tests in the future.

The Tribunal accordingly affirms the primary decision not to grant the visa applicant a subclass 683 (close family visitor) visa.

I certify that this and the ten preceding pages are a true copy of the decision and reasons for decision of the Tribunal.