1508730 (Migration)

[2015] AATA 3918

1508730 (Migration) [2015] AATA 3918 (14 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Aiqun LIN

VISA APPLICANT:  Ms Xiuying Wang

CASE NUMBER:  1508730

DIBP REFERENCE(S):  03232577

MEMBER:Linda Symons

DATE:14 December 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 14 December 2015 at 11:32am

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 22 June 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 2 June 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 was not satisfied that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.    

5. The review applicant appeared before the Tribunal on 10 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin (Fuqing) and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 her son and his family. 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.

11. The visa applicant has not visited Australia previously and has not held a substantive visa or any subsequent Bridging visa previously.

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

    ·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. In considering whether the visa applicant intends to comply with condition 8101, the Tribunal discussed the proposed financial arrangements for her visit to Australia. The review applicant gave evidence that the visa applicant would live with him and his family in Australia. He stated that he will pay for the visa applicant’s airfare and expenses in Australia. He stated that he is employed as a meat exporter to China. He stated that he earns $70,000.00 to $80,000.00 nett per annum. He stated that he and his wife own a 6 bedroom house and an investment property and have savings of $200,000.00. He stated that the visa applicant is not planning to work in Australia. The Tribunal notes that the visa applicant is a 78 year old woman.  

14. In considering whether the visa applicant intends to comply with condition 8531, the Tribunal notes the evidence of the review applicant that his father has passed away and his mother, the visa applicant, is a widow. He stated that she has 8 children and he is her only son. He stated that he is married and has 2 children aged 9 years and 11 years. He stated that one of his sisters and her 2 children live in his home in a separate building. He stated that this sister is on a Student Guardian visa which expires in January 2016 and that she intends returning to China. He stated that 6 of his siblings live in China. He stated that they are all married and some of them have grandchildren.

15. The Tribunal discussed the visa applicant’s proposed length of stay in Australia. When asked for how long the visa applicant wishes to visit Australia, the review applicant stated that he wishes she will stay here for 3 months. The visa applicant gave evidence that she wishes to stay in Australia for 1 month. When the Tribunal put this information to the review applicant, pursuant to s.359AA of the Act, and noted that this inconsistency raises concerns in relation to the visa applicant’s intentions, he responded that it is his hope that she will stay here for 3 months. He stated that she wants to stay here for 1 month but he wonders whether she would even be able to stay here for a month.

16. The Tribunal asked the review applicant what incentive the visa applicant had to return to China at the end of her holiday. He responded that he is wondering whether she would be able to stay here for even 2 weeks. He stated that she is a diligent old woman. He stated that she cleans her house twice a week. She stated that she looks after her two grandchildren aged 6 years and 7 years and picks them up after school. He stated that she even grows peanuts. When asked who would look after her grandchildren when she is in Australia, he responded that his sister will have to obtain leave from her work.

17. The Tribunal asked the review applicant what would happen if the visa applicant came to Australia and then changed her mind and decided that she wanted to live with her son and not go back to China. He responded that that would be impossible. He stated that if that was her intention he would have helped her to apply to immigrate to Australia. He stated that that would never have occurred to her. He stated that if that was a concern for the Tribunal he was prepared to put up his house as security to ensure that the visa applicant complied with the conditions of her visa.  

18. The Tribunal asked the visa applicant what incentive she had to leave Australia and return to China at the end of the visit. She responded that she will definitely return. She stated that she owns two buildings and has leased one of them. She stated that she needs to return to do the cleaning. She stated that she has a social life with the “old people” in her community. She stated that she just wants to visit her son and her grandchildren who she has not seen in a long time. She stated that she wants to spend time with them while they are on holidays and strengthen her relationship with them.

19. The review applicant gave evidence that the visa applicant owns two five storey buildings and an orchard. He stated that his father owned these properties but title passed to the visa applicant on his father’s death. He stated that one of the properties is leased and the visa applicant receives the rental income. He stated that she has savings of approximately 100,000.00 RMB. He provided the Tribunal with a bank statement. It does not indicate the source of the deposits into the bank account. The review applicant stated that the lessee deposits the rent into the bank account.  

20. The visa applicant has financial ties to China which may provide an incentive for her to leave Australia at the end of her permitted stay and return to China. However, she is able to access her bank account in Australia should she wish to remain here. The visa applicant has a larger number of her children living in China than in Australia including her daughter and grandchildren she lives with, and this may provide an incentive for her to leave Australia at the end of her permitted stay and return to China. However, her only son resides in Australia and this may provide an incentive for her to remain here.

21. The Tribunal has also considered other relevant matters. The review applicant gave evidence that the visa applicant is in good health. He stated that she underwent a health check last month and everything is alright. He stated that she is not on any medication. The visa applicant gave consistent evidence.  

22. The Tribunal has considered the review applicant’s immigration history. He gave evidence that it was difficult to obtain a visa to come to Australia and he approached a people smuggler who obtained someone else’s passport and visa for him. He stated that he came to Australia under an assumed identity. He stated that the visa was a temporary visa which subsequently expired and he remained in Australia. He stated that he acquired permanent residence in Australia through marriage.  

23. The records of the Department indicate that the review applicant first came to Australia on 19 August 2003. On 3 May 2006, he was granted a Bridging visa in association with his application for a Partner visa. On 14 April 2009, he was granted a subclass 801 Partner visa. The Tribunal put this information to the review applicant, pursuant to s.359AA of the Act, and noted its concerns that the visa applicant may also intend coming here on a temporary visa and then seek to reside here permanently. The review applicant responded that when he came here on 19 August 2003 his wife was pregnant with their eldest child who was born on 6 December 2013. He stated that his wife was here by herself. He stated that he was responsible for his family so he remained here. He stated that he did not have a visa or a stable job but had to work illegally to support his family. He stated that he was young at the time.

24. The review applicant stated that he has been separated from the visa applicant for a long time now and has settled down in Australia. He stated that the visa applicant is in her eighties. He stated that she is getting to an age where she may not be able to travel any longer. He stated that she has never been out of China. He stated that he wants her to come to Australia even once to see what he has achieved here.    

25. The review applicant gave evidence that he is prepared to lodge a security bond to ensure that the visa applicant complies with the conditions of her visa. He stated that he is prepared to lodge between $20,000.00 and $30,000.00 in security.

26. Having considered all the evidence, in particular the visa applicant’s age, family and community ties in China and financial commitments in China, the Tribunal accepts that the visa applicant intends only to visit her son and his family in Australia. The Tribunal accepts that the review applicant is prepared and able to provide financial security to ensure that the visa applicant complies with the conditions of her visa and that this would be a strong incentive for the visa applicant to comply with her visa conditions.

27. 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

28. 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.

    Linda Symons
    Member