1510147 (Migration)

[2015] AATA 3863

1510147 (Migration) [2015] AATA 3863 (11 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yue Rong Mai

VISA APPLICANTS:  Mr Guanghua Mai
Ms Liandai Zeng

CASE NUMBER:  1510147

DIBP REFERENCE(S):  BCC2015/2026242

MEMBER:Christian Carney

DATE:11 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Visitor (Class FA) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 11 December 2015 at 4:17pm

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 July 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 14 July 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 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 visas, on the basis that the visa applicants did not meet cl.600.211 because, in the delegate’s view, the period of time they indicated they wanted to spend in Australia (three months) was not consistent with their stated reasons for visiting, ‘to visit sister-in-law’, and not consistent with their claim to be in employment. 

5. The review applicant appeared before the Tribunal on 9 December 2015 to give evidence and present arguments.  The review applicant was represented in relation to the review by her registered migration agent.

   Issue for determination

6. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicants genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether they have complied substantially with the conditions attached to the last substantive visa held by each of them; whether they intend to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter. 

   Information about the visa applicants

7. The visa applicants are husband (53) and wife (56) citizens of China.  They live together in an apartment in Zhujian New City, Tianhe District of Guangzhou City in Guangdong Province of China.  They have one son (23) who lives with them.  He is a partner / owner and sales manager of Guangzhou Shugang Fabric, which has been in operation since 2002.  She works for the company in a clerical role.  They are both in good health and do not have criminal records.  He last applied for a visa to come to Australia in about 2005 but that was refused.  She has not before applied for a visa to come to Australia. 

8. They applied for a visa to visit Australia from 3 August 2015 to 2 November 2015 to ‘visit his sister and her family and stay some time with them and to do some sightseeing’.  The review applicant (73) is his sister and they will stay with her and her family while they are here.  They have enough savings to cover their expenses and incidental costs. 

9. They provided the following information and evidence with the application:

   (a)Copy of passports for each applicant, and marriage certificate (in Chinese with English translation).

   (b)Copy of ‘notarial certificate’ (in Chinese with English translation) from Gaoyao Notary Public Office dated 12 February 2015 confirming that the visa applicant is the brother of the review applicant.

   (c)Account statement dated 20 May 2015 from the China Construction Bank for account held by male visa applicant showing balance of 70,000RMB, and statement dated 17 May 2015 from the Bank of China for account held by female visa applicant showing balance of 60,354MB. 

   (d)Employment Certificates (in Chinese with English translation) for both applicants confirming details of their employment with Shugang Fabric company in Guangzhou, and that they are each entitled to three months leave for the stated period.   

   (e)Various payslips and financial records (in Chinese with English translation) for both applicants, and Guandong Province Real Estate Property Certificate (in Chinese with English translation) for property owned by the female visa applicant. 

10. They also provided a number of documents relating to the review applicant, including bank account statements showing a balance of over A$44,000, marriage certificate, a number of household utility and rates notices, and a declaration stating she is the elder sister of the male visa applicant and wishes to sponsor him and his wife to visit Australia, and will be responsible for their visit and will provide them with accommodation, and guarantees that they will comply with the conditions of the visa. 

    Hearing on 9 December 2015

11. The review applicant gave the following evidence at a hearing before the Tribunal:

    a.She is 73 years old and migrated to Australia in 1991.  She has returned to China a number of times during that period.  She maintains close relationships with her brother and sister in China.  She and her husband and children are all Australian citizens. Her brother is the youngest child in their family.  Their mother was 18 when she gave birth to the review applicant.  She had three siblings die when they were young.  Her mother gave birth to the visa applicant when she was 38.  Both of their parents are deceased. 

    b.She last went to China to see her family about three years ago.  She got quite ill travelling and was advised not to travel for long distances again.  This is why she cannot go back to China.  It is why she would like to sponsor her younger brother and his wife to come and visit her in Sydney. 

    c.She wanted him to come for their daughter’s wedding back in 2005 but his application was refused.  She does not know why it was refused.  She did not apply to come to the Tribunal the last time. 

    d.Neither she or the visa applicants or anyone in their family is religious or belongs to any religious group or faith, and no one in her family is involved in any political or religious group or organisation.  Neither she or the visa applicants or anyone in their family has ever had any trouble with the authorities or the police in China or in Australia or any other country.

    e.She and the visa applicants and everyone else in their family are honest and hard- working people.  Her brother set up his own fabric business about 10 years ago and it has been successful.  Their son (her nephew) is single and operates his own business in Guangzhou. 

    f.She wants to see her brother and his wife.  They are all very close.  She cannot go back again to China because of her health issues.  Her brother and his wife are happy together and, to her knowledge, there is no problem in their marriage and they have no disputes with any person or group in China.

    g.Her brother and his wife do not want to come and live here.  They have a comfortable life in China.  It is their home.  They have a successful business.  They do not want to come here to work or study.  They will stay with her for most of the time and they might all do some sightseeing. 

    h.She is aware of the potential consequences on other family members travelling to Australia in the future if they do not comply with the conditions of the visa.  She is willing to deposit a security bond to guarantee compliance with the visa.  She knows she will lose that money if they overstay the visa.  She does not have a lot of money and she is confident her brother and sister-in-law would not do anything to make her lose that money. 

    Consideration and assessment

12. In the present case, the visa applicants seek the visa for the purposes of visiting his sister and family in Australia.  This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.221.

13. 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)).  The evidence before the Tribunal indicates that the visa applicants have not before entered Australia and there is no evidence to assess their past travel history against. 

14. The Tribunal must also consider whether they intend to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)).  The conditions which a visa in the circumstances of this case would be subject include (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.

15. The evidence before the Tribunal indicates that the visa applicants operate a business that has been in operation for over 10 years, in which they are both employed, and that the female visa applicant owns the apartment in which they live in with their adult son.  The evidence indicates that, at the time of application, the balance of two of their bank accounts was over A$30,000, and the balance of the review applicant’s bank account was over A$40,000.  The review applicant confirmed that they will stay with her for most of the time they are in Australia. 

16. The review applicant gave her evidence in a straightforward and clear manner and there is no evidence before the Tribunal to contradict her statements that her brother and sister-in-law have strong ties to China and do not wish to visit Australia other for a genuine temporary stay to visit her and her family here.  With regard to general living standards and the fact that, on one view, the higher standard of living in Australia may be thought to be an incentive for them to remain past the expiration of the visa, or to seek to work while they are here, having carefully considered all of the evidence and information before it, in themselves, those matters do not persuade the Tribunal that the visa applicants would not comply with the conditions of the visa, particularly when doing so would potentially create difficulties for other family members being granted visas to enter Australia in the future. 

17. On the evidence before it, the Tribunal accepts that the primary purpose of their coming to Australia is to visit the review applicant and her family, and that neither visa applicant intends to work while they are in Australia.  There is no evidence or indication that the visa applicants wish or intend to study or participate in any training course in Australia, and the Tribunal is satisfied that neither visa applicant has an intention to study or train while in Australia.  In addition, the evidence does not indicate that either visa applicant has health problems or that they require care or assistance.  The Tribunal considers this goes to a lack of extrinsic reason for them to want to remain in Australia past the expiry of a Visitor visa. 

18. Furthermore, the review applicant gave compelling evidence about her current health situation and her inability to travel by air outside Australia, which indicates it is unlikely she will return again to China and, unless her family in China are able to travel to Australia, that she will not see them again.  The evidence does not indicate that she is a particularly wealthy woman, yet, if required, she is prepared to lodge a security deposit to ensure her brother and sister-in-law comply with the conditions of the visa.  In the circumstances, the Tribunal considers that an appropriate security bond would be a sufficient deterrent to ensure compliance.

19. Having carefully considered the available as a whole, the Tribunal is satisfied that the visa applicants want to visit Australia for genuine reasons and not for a purpose other than a genuine temporary stay to visit his sister (the review applicant) and her family.    For these reasons, the Tribunal is satisfied that they genuinely intend 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.

    Christian Carney, Member