1504622 (Migration)

[2015] AATA 3084

1504622 (Migration) [2015] AATA 3084 (15 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Christopher Shane O'Brien

VISA APPLICANT:  Master Shuai Zeng

CASE NUMBER:  1504622

DIBP REFERENCE(S):  BCC2015/932927

MEMBER:Alison Mercer

DATE:15 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 15 July 2015 at 5:00pm

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 25 March 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 24 March 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 Sponsored Family 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 the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia.  In reaching this conclusion, the delegate considered that, as the visa applicant’s mother resided in Australia, he had insufficient family ties in China to act as an incentive for him to return after a visit.  The delegate also expressed concern about the fact that the visa applicant’s mother and step-father indicated that they wished the visa applicant to visit for 6 months and to attend school in Australia, given that any visitor visa granted to the visa applicant would limit study in Australia to no more than 3 months.

5. The Tribunal received a review application from the review applicant (the step-father of the visa applicant) on 6 April 2015.  It was accompanied by a copy of the delegate’s decision and a submission from the review applicant dated 5 April 2015, in which he made the following points (in summary):

   ·    the visa applicant genuinely intended a temporary stay only on the proposed visit, although it was acknowledged that he might later wish to migrate as a dependent of his mother, who held a subclass 300 (Prospective Spouse) visa on the basis of her relationship with the review applicant;

   ·    although the visa applicant’s mother was in Australia, he had close family in China as he lived with his maternal grandparents, and had many uncles, aunts and cousins;

   ·    although 6 months was sought originally, this was only done to provide flexibility with the visa applicant’s travel dates and it was not ever intended that he stay in Australia for 6 months.  Ideally, the visa applicant would visit Australia for 2 months during his summer school break in China (approximately June to August 2015).  If possible, he would attend school in Australia for some of this 2 month period in order to familiarise himself with the system, should he ultimately decide to join his mother in Australia; and

   ·    to stay longer in Australia and/or breach any visitor visa conditions would jeopardise the visa applicant’s Chinese school results, as well as any future migration plans and was in no way contemplated by the visa applicant or review applicant.

6. The review applicant appeared before the Tribunal on 15 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Yuepeng (Helen) Shen, the visa applicant’s mother.  The Tribunal was assisted by the services of an interpreter in the English and Mandarin languages. The Tribunal received additional documentary material, including the Department’s notification that Ms Shen has now been granted a subclass 820/801 (Provisional Partner) visa and has obtained employment with the same company for whom the review applicant works.

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 mother and step-father in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

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 had not previously travelled to Australia and so this consideration is not relevant 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 (cl.600.612):

    ·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. Finally, 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. The Tribunal took evidence from the review applicant and his wife (the visa applicant’s mother) at the hearing, and found them both to be sincere, credible and straightforward witnesses.

15. On the basis of the documentary and oral evidence before it, the Tribunal made the following findings:

    ·the review applicant is 51 year old Australian citizen.  He is married to Yuepeng (Helen) Shen, who migrated to Australia as the holder of a subclass 300 (Prospective Partner) visa granted in October 2014.  Ms Shen is the mother of the visa applicant.  The visa applicant is the step-son of the review applicant;

    ·Ms Shen was granted a subclass 820/801 (Provisional Partner) visa on 24 June 2015;

    ·the review applicant is a maintenance engineer currently employed by Vistaprint in Melbourne.  Ms Shen is currently employed there on a casual basis.  The review applicant owns his own home in Caroline Springs where he and Ms Shen reside;

    ·prior to relocating to Australia in October 2014, the review applicant and Ms Shen lived in Changsha in Hunan province with the visa applicant;

    ·the review applicant and Ms Shen would meet all the costs of the visa applicant’s visit to Australia and the visa applicant would stay with them;

    ·the visa applicant is a 16 year old Chinese national.  His parents are the review applicant’s partner, Ms Shen, and Mr Xianlan Zeng. The visa applicant currently lives with his maternal grandparents in Changsha, where he attends middle school as a full-time student;

    ·the visa applicant also has his maternal uncle, aunt in law and cousin in Changsha, whom he sees frequently.  He is close to his cousin, who is several years younger than him;

    ·the visa applicant’s father Mr Zeng has consented to the visa applicant visiting Australia to see his mother and the review applicant;

    ·the review applicant and Ms Shen wish the visa applicant to visit them in Australia to see what their life is like here, and if possible, to undertake English language assessment and look at tertiary institutions, in order for him to evaluate whether he wishes to migrate to Australia as part of his mother’s visa application;

    ·it is intended that the visa applicant would stay in Australia for approximately 2 months, being the period of his summer break from his schooling in China.  He is to start school on 15 August 2015 but it is intended that he would return to China by the start of September 2015.  His teachers are supportive of him spending extra time with his mother in Australia and he will be able to catch up academically as he is currently progressing well;

    ·the visa applicant is a high academic achiever in China.  It will be his decision as to whether he wishes to migrate to Australia with his mother or not, but it would assist all parties for the visa applicant to be able to spend some time in Australia with his mother and the review applicant prior to making such a decision.

16. The Tribunal notes the concerns of the delegate concerning the apparent 6 month visit initially sought but is satisfied that the review applicant, Ms Shen and the visa applicant intend a visit of approximately 2 months, and that 6 months was initially sought to maximise flexibility for the visa applicant’s travel arrangements.

17. Similarly, the Tribunal is satisfied that it is planned that the visa applicant will undertake Australian educational tests for a period while in Australia if granted a visitor visa, but that he is unlikely to attend secondary school except to observe the education system here.  The Tribunal is satisfied he would comply with the condition not to study for more than 3 months in Australia. 

18. The Tribunal is satisfied that the visa applicant would abide by the remaining visa conditions, and would not work or seek to extend his stay in Australia.  It acknowledges and accepts that the main purpose of the proposed visit is for the visa applicant to experience life in Australia with his mother and step-rather with a view to informing his ultimate choice of whether to migrate with his mother in future. The Tribunal is satisfied that the visa applicant would return at the conclusion of any authorised period of stay and it accepts that he has significant incentive to do so, being his family and school commitments in China and the extended family’s awareness that to not to do so would jeopardise him visiting or migrating in future.  The Tribunal is satisfied that the review applicant, Ms Shen and the visa applicant will pursue the appropriate channels in the event that the visa applicant wishes to visit and/or migrate in future.

19. 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

20. 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