1506013 (Migration)

[2015] AATA 3440

1506013 (Migration) [2015] AATA 3440 (23 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tan Sang Dang

VISA APPLICANT:  Mrs Lee Ping Siu (as amended)

CASE NUMBER:  1506013

DIBP REFERENCE(S):  01005432

MEMBER:Steve Georgiadis

DATE:23 September 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the visa applicant, Mrs Lee Ping Siu, a Visitor (Class FA) visa.

Statement made on 23 September 2015 at 5:45pm

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 24 April 2015 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 8 April 2015. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicants applied for the visas 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 visas, on the basis that the visa applicants did not meet cl.600.211 as the delegate was not satisfied that the applicants’ personal circumstances, financial situation, and family and business ties in Hong Kong provide sufficiently strong incentive for the visa applicant to leave Australia.  Therefore, the delegate was not satisfied that the she genuinely intends to stay temporarily in Australia for the purpose for which the visa was requested and that she will comply with the conditions of the visa if granted.   

5. The review applicant appeared before the Tribunal on 23 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mrs Lee Ping Siu. Other witnesses did not provide oral evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin, Cantonese and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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. The period of the intended stay set out in the visa application is for 12 months to April 2016.

8. In terms of the potential for the visa applicant to overstay any visa granted to her, the Tribunal notes that the policy guidelines in PAM3 require it to consider whether there is any possibility that an applicant might apply for a Protection visa. However, the Tribunal has also had regard to the decision in Khanam v Minister for Immigration & Citizenship [2009] FCA 966. In this case Court held that in assessing an applicant's genuine intention to visit Australia, the Tribunal must take into account the applicant's stated reasons for wishing to visit Australia and the applicant's motive for doing so. There are no reasons provided by the visa applicant to suggest that she cannot return to her home region of Hong Kong.

9. In the present case, the visa applicant and her children seek the visas for the purposes of visiting the review applicant who is an Australian citizen. The review applicant’s Certificate of Australian Citizenship shows that citizenship was conferred on 14 July 1987. The visa applicant seeks to bring her twin daughters to Australia to be with their father, grandparents and other close relatives, and to travel.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. The applicants provided a copy of a Marriage Certificate which records that they married in Hong Kong on 14 January 2015 and that their daughters were born in Hong Kong on 17 February 2015.  This followed a divorce certificate issued to Mr Dang on 21 December 2014 in respect of a prior relationship with Tung Mui Tang. 

11. Prior to the hearing, the applicants provided DNA parentage test results from Sonic Genetics under cover letter of 6 August 2015 which establishes that there is a greater than 99.99% probability of parentage in the case of each of the children’s father Mr Tan San Dang, and the children’s mother Mrs Lee Ping Siu. The Tribunal accepts from this documentary evidence and the oral evidence provided at the hearing that the review applicant and visa applicant are the parents of twin daughters, Tsz Huen Camilla Dang and Tsz Ting Sarah Dang named as visa applicants.

12. Since the visa application was made, however, the two child applicants have been granted Australian citizenship (issued on 13 August 2015) following the DNA parentage testing provided to the Department.  Accordingly, the review application was amended at the hearing to be only in respect of the adult visa applicant Mrs Lee Ping Siu (the applicant), which the Tribunal accepts.

13. In considering whether the applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).  

14. From the oral evidence provided at the hearing together with the Department’s movement details the Tribunal accepts that Mrs Siu previously travelled to Australia from 8 July 2012 and departed on 13 April 2013 having being granted Class UD 976, Class TU 570 and relevant bridging visas covering the above periods. The Class TU 570 (Student) visa was granted from 25 September 2012 and ceased on 20 November 2013. The movement records show that the visa applicant departed Australia on 10 November 2013 consistent with the approval of her last substantive visa held.

15. From the above evidence the Tribunal accepts that there is no evidence of non-compliance with conditions of the last substantive visa held and accepts there is substantial compliance in the past - (cl.600.211(a)).

16. 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 would be subject are as follows (cl.600.611(2) (3) (4)):

    ·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.

17. The Tribunal has considered the applicants’ oral evidence and accepts that the visa applicant intends to comply with the following conditions to which the Subclass 600 (Visitor) visa would be subject: that she would not work in Australia (8101); and would not engage in study or training in Australia for more than three months (8102).  The Tribunal that it would be very difficult to undertake such tasks in circumstances where there are twin infants to care for during her period of stay as the evidence is that the children would accompany the visa applicant to Australia.

18. There are however, other compelling factors that point to the likelihood that the visa applicant would seek to remain in Australia beyond her stated stay and potentially breach terms under which the visa is granted which the Tribunal now turns to.

19. The visa applicant confirmed in her oral evidence that the application for the Subclass 600 (Visitor) visa was for a period of up to 12 months which at the time of application, sought to cover the period from 28 April 2015 to 27 April 2016.  At the hearing she said that she actually only wished to visit for one month over the Christmas holiday period (which included her birthday) and then return to Hong Kong with her children.  However, at the hearing the applicants raised a number of factors which give the Tribunal cause for concern that the visa applicant may not have sufficient incentive to depart Australia following her stated intention to visit for the period of one month.  One such factors is that the couple has recently purchased property in Nollamara, Western Australia being residential premises purchased in 2013 in the joint names of the visa applicant and review applicant. The applicants referred in their oral evidence to the documents provided from the WA water utility and city/council rates which they confirmed are in the joint names of the visa applicant and the review applicant. The Tribunal accepts that the visa applicant is largely dependent on the review applicant for financial support in Australia which he said he would provide to cover the period of the visit from his car repair business.

20. I turn to the visa applicant’s incentives to return to Hong Kong following her proposed visit to Australia.  When invited to comment on this, the visa applicant responded that she has family there including her elderly parents and that in particular, her father was ill as he had fainted on two occasions recently and was hospitalised on one of those occasion as a result.  She said that the reason she wished to return to Hong Kong was to assist in looking after her father as her mother was also of progressing years and in poor health.  She explained to the Tribunal that they all reside together in the same household, the property of which is owned by the visa applicant. The visa applicant also said that she is “not working at the moment ... full-time at home.”  Later in the hearing she stated that she recently had returned to work in her own business in the cosmetics industry and that she was keen to return to Hong Kong to this business as she had better prospects for such a career in Hong Kong that she did in Australia. The Tribunal pointed out this discrepancy to her to which she responded that she generally leaves the house in the evenings when she has to meet with clients. The Tribunal also noted her earlier evidence was in contrast with that which she had stated to the Tribunal that she came to Australia specifically for the purpose of studying English as she considered this would assist her in her career.  The Tribunal considers this could be taken to also assist her with English-speaking clients in Hong Kong and so the Tribunal does not place substantial weight on this factor of inconsistency alone.

21. When asked of any medical evidence to substantiate her father’s ill-health, the applicant did not produce or point to any such evidence to substantiate this claim.  The Tribunal also raised with her whether she had the capacity to look after her ill father when she had her two infant twins to care for, compounded by the fact that she had recently returned to work in the cosmetics industry in her own business. The visa applicant responded that she would hire a babysitter which she said was inexpensive in Hong Kong and that this, coupled with assistance from her mother, would enable her to continue with her return to work.  Although, this flies in the face of her mother’s own poor health and also the visa applicant’s availability to look after her ill father which was a stated primary reason she claims as a strong incentive to return to Hong Kong in the first place.

22. Of more concern however, is the oral evidence given by the review applicant in respect of the arrangements for his family’s stay in Australia.  He confirmed at the hearing that his twin daughters had recently be granted Australian citizenship on 13 August 2015 which the Tribunal accepts, and that he wished to have his family “join us as a united family in Australia as one group” and that if he could achieve this, it would “be a dream come true.”  The Tribunal reflected to the applicants that this tended to suggest an intention that the family would stay together and potentially beyond the period of one month stated by the visa applicant or even the visa application term of 12 months for the purposes of the Visitor visa.  In response, the review applicant said that at the end of the stay “my wife will return to Hong Kong.”  Again, the Tribunal reflected to the review applicant that this strongly suggested that his wife would return but that the children would stay on in Australia.  When questioned further about this, the review applicant added that one possibility was that one of the twins would stay on in Australia and the other would return with their mother at the end of her visit. The visa applicant told the Tribunal that she was keen not to separate the twins as she wanted them to “grow up together”.

23. At the hearing, the Tribunal put to the applicants that any suggestion of the children staying in Australia beyond the period applied for or granted in the Visitor visa, would act as a very strong incentive for the visa applicant to also seek to stay on in Australia given that at least one of the children and her husband would reside in Australia.  This is particularly so considering that the twins and her husband are all Australian citizens with the right to live in Australia and her stated desire to not separate the twins.  When invited to respond, the visa applicant said that she had not really discussed this option with her husband and it became apparent at the hearing that there was discord between the couple in respect of their plans regarding the residency status of their children, and whether they would live on an ongoing basis in Australia or in Hong Kong.  When the Tribunal questioned the applicants further about this the visa applicant said that on this occasion she wished to bring them with her to Australia “to see if they can adapt to the environment in Australia.”  Later during the hearing, the review applicant stated that the couple had already worked out a schedule to return to Australia and to reside here “as a family altogether and to settle the children” and that “my wife would then fly back to Hong Kong.”  When questioned in more depth about whether the children would return with their mother at the end of any period granted under the Visitor visa, the review applicant’s response was that he was “not sure”. 

24. Overall, and having weighed up the relevant factors discussed above, the Tribunal is satisfied that the particular circumstances of the visa applicant are such that the personal circumstances that may encourage her to return to her home country, Hong Kong, do not outweigh the circumstances which may encourage her to remain in Australia.

25. The Tribunal has considered the competing factors and particularly the competing incentives to leave or to stay in Australia at the end of the stated intention to visit only, and is not satisfied, on balance that the visa applicant will not remain in Australia after the end of the permitted stay granted under a Subclass 600 (Visitor) visa.  This would be a breach of a visa condition (8531).  The Tribunal concludes, on balance, that notwithstanding the declarations made in the visa application, it is not satisfied that the visa applicant intends to comply with a condition to which the Subclass 600 visa would be subject (cl.600.211(b)).

26. Therefore, the Tribunal is satisfied that cl.600.211(b) is not met.

27. The Tribunal has considered all relevant matters and for the above reasons is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds on balance, that the requirements of cl.600.211 are not met.

28. The Tribunal makes no finding in this application in respect of the children, Ms Tsz Huen Camilla Dang and Ms Tsz Ting Sarah Dang, as they are now Australian Citizens and accepts that the application has been amended at the hearing to exclude them as visa applicants in these proceedings.

29. The Tribunal notes the marital status between the review applicant and the visa applicant and notes alternative migration pathways (partner/spouse) that may be available to them which they are encouraged to explore.

    DECISION

30. The Tribunal affirms the decision not to grant the visa applicant, Mrs Lee Ping Siu, a Visitor (Class FA) visa.

    Steve Georgiadis
    Member