1504426 (Migration)

[2015] AATA 3053

1504426 (Migration) [2015] AATA 3053 (8 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zhumin Pei

VISA APPLICANT:  Mr Zhuhui Pei

CASE NUMBER:  1504426

DIBP REFERENCE(S):  02211921

MEMBER:Alison Mercer

DATE:8 July 2015

PLACE OF DECISION:  Melbourne

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 08 July 2015 at 4:07pm

.

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 30 January 2015 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 19 January 2015. At the time the visa application was lodged, Class FA contained one subclass, subclass 600 (Visitor), with four 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 she found that the visa applicant had not demonstrated sufficient commitments in China as an incentive for his return. The delegate noted that this was his third visitor visa application, and that previous applications had been refused for similar reasons and nothing further had been provided with the current application to allay those concerns.  The delegate accepted that the visa applicant received a pension but found that it was not a significant amount.  While he had provided recent bank account statements, the delegate found that most of the funds had been recently deposited and could not be relied up as evidence of his personal financial capacity.

5. The Tribunal received a review application from the review applicant (the visa applicant’s brother) on 31 March 2015.  It was accompanied by a copy of the delegate’s decision, a letter from the review applicant in support of the visa applicant, documentary evidence of the relationship between the review and visa applicants, and bank deposit statements for the visa applicant.

6. The review applicant appeared before the Tribunal on 8 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. 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)).

11. It was not disputed that the visa applicant has not previously been granted an Australia visa and thus this consideration has little relevance in his case.

12. 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:

    ·            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.

13. The Tribunal must also consider all other relevant matters (cl.600.211(c)). The term ‘all other relevant matters’ is not defined in the Act or Regulations.

14. At the hearing, the review applicant and visa applicant gave their evidence separately.  The Tribunal found them both to be credible witnesses who were consistent in their evidence.

15. Based on the oral and documentary evidence from the visa and review applicants before the Tribunal, the Tribunal makes the following findings:

    ·the review applicant is a 60 year old Australian citizen.  He is divorced. He works part-time in a cafe and owns his own home in Wantirna South in Melbourne, which he shares with his adult daughter. His daughter works full-time and contributes to the household finances;

    ·the review applicant has lived in Australia for approximately 25 years;

    ·the visa applicant is a 62 year old Chinese national and the older brother of the review applicant;

    ·he resides in Tianjin in Hebei in China with his wife and adult son;

    ·the visa applicant is retired and receives a superannuation pension.  He holds approximately 460,000 yuan in savings (consisting of several term deposits and a savings account) and owns 3 properties.  In addition, his wife owns a property and has savings;

    ·the visa applicant was able to accumulate these assets due to compensation he received when the authorities demolished properties belonging to him and his mother to make way for a new school development in central Tianjin;

    ·the visa applicant has 2 siblings, the review applicant in Australia, and a sister who resides in Tianjin.  The parents and another brother of the visa and review applicants are deceased;

    ·the visa applicant has never visited Australia before.  He applied to visit in 2005 and in 2014 but these applications were rejected; and

    ·the review and visa applicants would like the visa applicant to visit for 3 months, during which time he would stay with the review applicant, who would provide accommodation.  They hope to visit Sydney and/or Canberra and to go fishing together.

16. The Tribunal notes the concerns expressed by the delegate regarding the visa applicant’s incentive to return and in particular, the fact that he provided financial evidence relating to funds that had only recently been deposited, raising concerns about their source.  The Tribunal is satisfied, having taken detailed evidence from the visa and review applicants and having regard to the documentary evidence, that the visa applicant has the savings claimed.  It is further satisfied that he owns 3 properties.  The Tribunal accepts that the visa applicant was able to accumulate these assets through the compensation orders made in respect of family property in Tianjin, documentary evidence of which was provided to the Department.  The Tribunal went through this documentary evidence with the assistance of the interpreter and is satisfied that this transaction was a significant source of the visa applicant’s assets. 

17. As to the timing of the documentary evidence provided to the Department, the Tribunal accepts the written and oral evidence of the visa and review applicant that the visa applicant originally provided a bank certificate for a term deposit of 180,000 yuan with his last visitor visa application in 2014, but was then advised to open a separate bank account and to deposit 100,000 yuan into that for the purposes of the current application as he was unable to have another bank certificate issued in relation to the 180,000 yuan term deposit in time. The Tribunal notes that he has now provided another bank certificate in relation to this term deposit, issued on 2 April 2015, confirming that he still holds 180,000 yuan with the Bank of Tianjin. 

18. During the hearing, the Tribunal put to the review applicant pursuant to s.359AA of the Act a file note on the Department file stating that the visa applicant’s application had been linked to another, named individual, who had been refused immigration clearance and who was apparently associated with several applicants refused on the ground of document fraud in Shanghai, and that the visa applicant’s application might therefore contain non-genuine claims and/or fraudulent documents.  The Tribunal explained that it considered that this information was relevant to the review application, because, if the Tribunal accepted it, it might find that the visa applicant was non-genuine about returning to China and/or had provided false documents.  The Tribunal noted that if it found this to be the case, then it would most likely find that the visa applicant did not genuinely intend to stay temporarily in Australia and that that would be a reason to affirm the decision under review.  The Tribunal indicated that it had not made up its mind about the information and would take into account any comments or response the review applicant wished to make, either immediately or after a break.  The review applicant indicated that he wished to respond without a break.

19. The review applicant stated that he had never heard of the person named in the file note and could only speculate that there had been some misunderstanding about documents he and his brother had provided.  He emphatically stated that all documents provided were genuine and reiterated that his brother had no need to provide fabricated documents.  He thought that possibly the person named could have been associated with the migration agency in Beijing that the visa applicant used for the current application. He explained that the visa applicant had used a travel agency to make his 2014 application, then after it was refused, he was advised to use a migration agent and did so. 

20. In response to the same information being put to him separately, the visa applicant stated that he did not know anyone by the name of the person in the file note. He also emphatically denied that any false documents had been provided by him, and said that he had no need to do so.

21. The Tribunal has given the contents of the Departmental file note careful consideration and has decided to give them little weight.  As noted above, it found the review and visa applicants to be credible witnesses who gave consistent evidence separately.  It therefore accepts that the person named in the file note was not personally known to either of them and that they have not provided false claims or fraudulent documents to the Department.  The Tribunal considers that one explanation for the note may be that the agent used by the visa applicant for his second visa application has been associated with false documents for clients; however, even if this is the case, it does not necessarily follow that this has occurred in the visa applicant’s case.  Having regard to all the evidence before it, the Tribunal is satisfied that it did not.

22. In his letter of support, the review applicant referred to the fact that the visa applicant had applied to visit Australia in 2005 but had his application rejected when Department staff rang his employer and received conflicting information.  At the hearing, the Tribunal asked the review applicant about this, and he indicated that at the time, his brother had started a new position with a company that was not doing very well and was not very well organised.  When the Department officer rang, the boss gave the wrong date of commencement and pay rate for the visa applicant.  However, this was not deliberate but the result of confusion on the part of the management of the organisation.  He and the visa applicant considered seeking review of that decision with the Tribunal but then their mother, whom the visa applicant was caring for in her old age, took a turn for the worse and it was impossible for the visa applicant to travel to Australia.  In his separately given evidence, the visa applicant confirmed his employment circumstances and also the care he had provided to their mother in the 7 to 8 years before her death.  Having considered this evidence, the Tribunal accepts the explanation provided by the review and visa applicants and does not consider that the circumstances of the previous visitor visa rejection indicate that the visa applicant is not genuine in his current application.

23. Based on all of the evidence before it, the Tribunal is satisfied that the visa applicant intends a genuine visit of 3 months to Australia to see his brother, the review applicant.  The Tribunal is further satisfied that he will return to China at the end of his visit as it finds that he has significant incentive to do so, being his wife and son, his sister and her family, his savings, his superannuation and his property assets.  Based on his financial situation, the Tribunal is also satisfied that the visa applicant has no need to work while in Australia and would comply with the ‘no work’ condition.  There is no suggestion that the visa applicant intended to study while in Australia and the Tribunal is satisfied that he will abide by the condition not to study for more than 3 months.  

24. 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

25. 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.

    Alison Mercer
    Member