1505725 (Migration)

[2015] AATA 3225

1505725 (Migration) [2015] AATA 3225 (20 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yini Zeng

VISA APPLICANT:  Mrs Jiahui Wang

CASE NUMBER:  1505725

DIBP REFERENCE(S):  BCC2015/1193768

MEMBER:Chris Keher

DATE:20 July 2015

PLACE OF DECISION:  Sydney

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 20 July 2015 at 4:10pm

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 23 April 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 14 April 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 the applicant intended to stay in Australia temporarily.

5. The review applicant was represented in relation to the review by her registered migration agent. The agents provided a written submission dated 16 June 2015 including an outline of the visa applicant’s migration history, a copy of an earlier MRT decision dated 14 February 2011, and a Statutory Declaration dated 22 May 2015.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The review applicant is Ms Yini Zeng and the visa applicant is her mother Mrs Jiahui Wang.

8. Mrs Wang was born in 1954 and is a citizen of the PRC. She is retired. Her husband was born in 1952; he is still working and is not travelling with her. They live in Guilin Guangxi. Mrs Wang has her daughter Ms Zeng living in Australia and residing at Falconbridge. She has two sisters and two brothers. They are all married and all reside in China, one of her sisters is also visiting Australia at the moment and is staying in Campsie. 

9. Ms Zeng is a permanent resident in Australia. She is married and has a daughter born March 2013. She at the time of application was pregnant and due in early July 2015. She wished her mother to be with her for the final stages of pregnancy and assist the family at that time. It is traditional in Chinese culture for mothers to do so.

10. She provided Statutory Declarations dated 8 April 2015 (with the application) and 30 April 2015 (to the Tribunal). She details she has previously sponsored her mother for a visit and also her mother has been here on two other occasions on a tourist visa and each time her mother returned to China and complied with conditions departing Australia before the expiry of her visa.

11. Ms Zeng and her husband operate a hotel and reside in an attached residence. Her mother will stay with them and will have her own room. Her father still works in China. She submits her mother will need to return no China as she wouldn’t want to breach any of her visa conditions as “that would jeopardise the Contributory Parent application”. It is submitted she has sufficient funds. Ms Zeng provided copies of medical reports relating to her pregnancy.

12. Ms Wang applied for a Contributory Parent visa on 18 June 2014. There has been no decision on that visa as yet.

13. A copy of the delegate’s decision was provided with the application for review.

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.

15. In the present case, the visa applicant seeks the visa for the purposes of visiting her daughter and her daughter’s family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

16. 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)).

17. There is no evidence of non-compliance with conditions of any previously held visa. There is evidence the visa applicant has complied with the conditions of her previously held visas.

18. 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.

19. The visa applicant has said in her application she will be staying with her daughter and her family and will have no accommodation costs. Her daughter will also provide her most of her food. She has her own money and provided evidence of 3 accounts in China, two are hers with balances of about AUD$30,000 and the others is her husband’s with a balance of about AUD$122,000. She previously applied for a sponsored Family Visitor visa in 2010 which was granted following review by the MRT in February 2011.

20. I am satisfied the applicant would comply with the above conditions. She has complied with her conditions previously.

21. The Tribunal has also considered all other relevant matters (cl.600.211(c)). I have considered other matters relevant to genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. 

22. The delegate considered the applicant hadn’t demonstrated sufficient ties in China to demonstrate she genuinely intends a temporary stay in Australia. I disagree. The visa applicant has her husband, her home and relatives. She has previously complied with conditions on each of her visits, and I accept as true that she would not want to jeopardise the outcome of the Contributory Parent visa applied for on 18 June 2014. I accept this is a strong incentive to return to China and to comply with visa conditions.

23. 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

24. 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.

    Chris Keher
    Member