The applicant is a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa (the primary applicant).
[2]
As already recorded, the primary applicant in this matter is Mrs Thi Kim Loan Nguyen, Mr Nguyen's mother. The Department refused Mrs Nguyen's application for a Subclass 188 visa. As already set out, the Tribunal has no jurisdiction to review that refusal decision.
As the primary applicant does not hold a Subclass 188 visa, then a member of her family unit, such as Mr Anh Khoa Nguyen, does not satisfy cl 188.311.
As cl 188.311 is not satisfied, the criteria for grant of a Business Innovation and Investment (Provisional)(Subclass 188) visa is not satisfied.
The Tribunal can only affirm the decision under review.
The primary applicant and her son spoke about, from their perspective, the unfairness of the departmental decision and the process that ensued, and the impact this has had on the family.
The delegate in their decision stated that they were not satisfied with information Mrs Nguyen provided regarding a loan she claimed she had made to her sister. The delegate wrote that they were not satisfied these funds were unencumbered or lawfully acquired, largely because these funds were given to her sister in cash.
Mrs Nguyen said that she lent a small amount of money to her sister compared to the overall investment and in Vietnam, the culture is to give cash rather than transfer funds via a bank. She said that she provided paperwork to the Department, but it was found that the loan to her sister was not legitimate which resulted in the application being refused. That causes her to feel sad. She has already invested her money in Australia and now does not know what to do. Her money and the loan to her sister was legitimate with certified documents. She asked that the Tribunal reconsider the decision. She said that if the negative decision is not reviewed, she feels that she has been wrongly judged and has not been given the opportunity to explain. It feels like an unjust process.
Mr Nguyen said that he and his family have waited for a few years for the opportunity to have their say and share their story and what they have been through in the last few years.
Mr Nguyen said he came to Australia when he was 12 years old to pursue a better education. His family decided to invest in Australia. When his visa was refused in year 11 or 12, that really affected his academic progress in year 12. But he faced that and went through year 12 and went to university.
Mr Nguyen said that he only heard about the hearing about a month ago, and he was looking forward to having a better opportunity and a better result. He has been dealing with this for a few years. He said that this issue has put his family through a hard time, here in Australia and in Vietnam. All the family money was used for the investment opportunity associated with the visa. Because of the effect of COVID-19 and inflation, and exchange rates, they lost money. The delegate's decision was unfair to the family as the funds were lawful and that was verified by their government institutions. What they did was common in Vietnamese culture. If the case stops here, that is very disappointing for the family.
The Tribunal had explained during the hearing the issues around review rights, jurisdiction and the criterion for granting a visa to a member of the family unit of the primary applicant. The Tribunal observes that the representative advised that he had informed the family of these.
The Tribunal is not unsympathetic to the applicant's situation, in particular Mr Anh Khoa Nguyen's. It acknowledges their disappointment with the outcome of the hearing. However, it can only apply the legislation and has no discretion in this matter.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are not met. Accordingly, the decision under review must be affirmed in relation to Mr Anh Khoa Nguyen.
[3]
The Tribunal has no jurisdiction in relation to the applications for review by Mrs Thi Kim Loan Nguyen and Mr Van Hoang Nguyen
The Tribunal affirms the decision not to grant Mr Anh Khoa Nguyen a Business Skills (Provisional) (Class EB) visa.
[4]
Representative for the Applicant: Mr Nguyen Thanh Long Phan (MARN: 1677976)
Legislation Cited (1)
Review Tribunal (Consequential and Transitional Provisions No. [1) Act 2024
Cases Cited (1)
Nguyen (Migration) [2025] ARTA 396 (28 March 2025)