1513004 (Migration)

[2016] AATA 3844

1513004 (Migration) [2016] AATA 3844 (29 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ping Kang

VISA APPLICANT:  Mr KAI KANG

CASE NUMBER:  1513004

DIBP REFERENCE(S):  01477234

MEMBER:Christian Carney

DATE:29 April 2016

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 29 April 2016 at 4:00pm

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 7 September 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 26 August 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. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he was not satisfied there were sufficient incentives for the applicant to return to China before the end of the visa. 

4. The review applicant appeared before the Tribunal on 22 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who appeared by telephone from China.  The Tribunal hearing was conducted with the assistance of an interpreter in the Chinese and English languages.  

   Issue for determination

5. 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 he has complied substantially with the conditions attached to the last substantive visa he held; whether he intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter. 

   Information about the visa and review applicant

6. The visa applicant is a 45 year old divorced father of two adult daughters who owns and operates a packaging business in Siping, in Jilin province in the far north-east of China.  He is in good health and does not have a criminal record.  His two daughters are both in Australia as the holders of Student visas. 

7. The review applicant is the visa applicant’s sister.  She is an Australian citizen and has resided in Australia since 2001.  She is married with four young children.  The visa applicant’s two daughters live with the review applicant. 

8. The visa applicant has previously applied for a Visitor visa on three previous occasions.  The first two applications were refused but, the third application was successful, and he was granted a Visitor visa in 2014; however, for business-related reasons, he did not use the visa to enter Australia. 

9. The visa applicant indicated in the current application form that he wished to visit Australia to visit his two daughters and to see his sister and help her with the care of her four young children.  He indicated in the form that he wished to visit Australia from 10/09/2015 to 10/09/2016.

   Documentary evidence

10. The visa applicant provided a number of documents in Chinese without translations to English, which relate to his business.  He also provided a copy of his household registration book, his passport, the review applicant’s passport, their family registration certificate from China which indicates they are siblings born to the same parents, and a number of bank records of the review applicant. 

    Hearing on 22 April 2015

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

    a.She confirmed the details of the information previously submitted regarding her personal circumstances, including the members of her family in Australia and China, her work in Australia, and the details of the visa applicant’s identity and his work and family situation in China.  She confirmed that his two daughters, who are 24 and 20, live with her and are full-time students. 

    b.She has previously sponsored several members of her family to come to Australia and they have at all times complied with the conditions of the visas and have left Australia before the visa expired.  She had to give a security bond for all of them.  Her mother first came to Australia in 2008 on a Visitor visa and stayed here to help her with the birth of her first child.  She also sponsored an aunt on a Visitor visa in about 2010 who stayed with her family for about three months.  She sponsored her younger brother in about 2013 on a Visitor visa and he stayed with her family for about two months.  She also sponsored a different aunt on a Visitor visa in about 2014 and she stayed with her family for about three months. 

    c.She confirmed that the visa applicant lived with their 72 year old mother.  Her mother was last in Australia between about September 2015 and January 2016.   

    d.Her brother’s packaging business effectively shuts down during winter in Jilin, and that is when he wants to come to Australia.  Their plan last year was that he would accompany her back to Australia, so he could help with her four children on the flight.  If her brother comes to Australia, their plan is for him to come in about October or November 2016 and to stay for three months over the Chinese winter.  Their mother is coming back here in June or July 2016.  She has a multiple entry visa. 

    e.He does not want to stay here for 12 months as indicated in the application form.  He was hoping to have a 12 month multiple entry visa as their mother was granted in the past.  He cannot stay away from his business for such a long period. 

    f.The visa applicant is not in a relationship with anyone.  He is a Buddhist.  He is not involved in any religious or political group or organisation.  Neither he nor anyone else in their family has ever had any trouble with the authorities or the police in China or Australia or in any other country.

    g.She and her husband own two properties in Australia.  Her husband runs his own cleaning business.  She just opened a new coffee shop business in Bella Vista. 

    h.She is prepared to lodge a security bond to ensure his compliance with the visa conditions.  She knows she will lose that money if he overstays the visa or works in Australia.  She is aware that any non-compliance would adversely affect other family members wishing to come to Australia in the future.

12. The visa applicant gave the following evidence by telephone from China:

    a.He confirmed the details of the information previously submitted regarding his identity and personal circumstances.  He gave evidence about his mother, sister and two daughters, which was consistent with the evidence the review applicant gave to the Tribunal.   

    b.He gave detailed evidence about his business in Siping, including that he established the factory in 2006 in partnership with his mother.  The factory has 10 employees, including two who perform a management and supervision role.  The work is seasonal and during the winter period it effectively shuts down and the staff go on holiday.  That is when he would come to Australia to stay with his sister and daughters. 

    c.The business is profitable and in a good financial position.  He estimated his income during the last 12 months to be approximately 400,000RMB.  He does not owe any money to private lenders and does not have any financial difficulties. 

    d.He does not want to stay here for 12 months as indicated in the application form.  He was hoping to have a 12 month multiple entry visa as their mother was granted in the past.  He cannot stay away from his business for such a long period.

    e.He has never before left China.  He owns the apartment that he and his mother live in but it is registered in her name. 

    f.He understands that his two daughters intend to apply for permanent residence in Australia. 

    g.He is not involved in a political or religious group or organisation.  He has not had any trouble with the authorities or the police in China.

    h.He confirmed that he only intends to stay temporarily while he is in Australia on the Visitor visa.  He understands he has to leave before it expires and that he cannot work or apply for another visa while he is here, and that, if he breaches any of the visa conditions, it would affect the ability of other family members to come to Australia and could jeopardise his daughters’ future applications.      

    Consideration and assessment

13. In the present case, the visa applicant seeks the visa for the purposes of visiting his sister and daughters in Australia and to help his sister with her caring responsibilities to her four young children and to do some sight-seeing.  These are purposes for which a visa in the Tourist stream may be granted: cl.600.221.

14. 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 applicant has not before entered Australia and there is no evidence to assess his past travel history against.  He was previously granted a Visitor visa but he did not use that visa to enter Australia.  The evidence before the Tribunal indicates that his two daughters, his mother, one of his brothers, the review applicant and two of their aunts, have entered Australia on Student and / or Visitor visas on numerous occasions in the past, and there is no evidence to indicate that any one of them has ever not complied with the conditions of the various visas they have been granted. 

15. The Tribunal must also consider whether he intends 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.

16. The evidence before the Tribunal indicates that the visa applicant has owned and operated a packaging factory in Jilin for over 10 years and that he lives with his mother in an apartment he purchased which is registered in his mother’s name.  The evidence indicates that he drew an annual income from the business in the previous year of about A$80,000.  The evidence also indicates that the review applicant is in a solid financial position and she and her husband own two properties in Australia and have just opened a new small business, a coffee shop. 

17. Both the review applicant and visa applicant gave their evidence in a straightforward and clear manner and there is no evidence before the Tribunal to contradict the consistent statements they each made about his situation, including his business and its financial situation.  The Tribunal accepts that the business effectively closes down during the winter months in Jilin, when temperatures fall well below zero degrees centigrade and there is regular snow-fall.  However, the Tribunal also accepts that two of the business’s employees are capable of managing the business over winter in the event the applicant came to Australia for two to three months as he plans to do. 

18. The Tribunal accepts that the applicant did not and does not wish to stay in Australia for 12 months as indicated in the application form, and that his intention in writing that information in the form was to be granted a 12 month multiple entry visa, as his mother was granted in the past. 

19. The key issue for the Tribunal to decide is whether or not it can be satisfied on the evidence before it that the visa applicant has a genuine intention to only remain here temporarily for the purposes of which the visa is granted and that he would not stay beyond the term permitted by the Visitor visa.  On the one hand, the fact that he is divorced and that his two daughters live in Sydney, with indications that both intend to migrate here, suggest ‘pull’ factors with regard to the potential for non-compliance.  Further, on one view, the higher standard of living in Australia may be thought to be an incentive for him to remain in Australia past the expiration of the visa, or to seek to work while he is here. 

20. However, having carefully considered all of the evidence and information before it, in themselves, those matters do not persuade the Tribunal that he would not comply with the conditions of the visa, particularly when doing so would potentially have an adverse impact on the review applicant, including financial loss and the loss of opportunity to sponsor other family members to enter Australia in the future, as well as on his daughters’ future applications.  Moreover, the evidence clearly indicates that he continues to maintain strong and close ties to China, in that he owns and operates a business in Jilin, which appears to be in a good financial position, and that he lives with his mother in an apartment he owns, and that he continues to live in the area he grew up in, and it is reasonable to assume he would wish to return to live in the area where his cultural and social ties are strongest.

21. The Tribunal accepts that in the event he came to Australia the visa applicant will stay with the review applicant, and that he will have limited needs while he is here and that those will be met by his own savings he will bring from China, as will his travel expenses.  For the reasons noted elsewhere in this decision, the Tribunal accepts that the primary motivation and purpose of his visit to Australia is to see his daughters and sister and to help her with the provision of care and support with her four young children, and not to work.  For these reasons, the Tribunal is satisfied that the visa applicant will not need to or want to work while he is in Australia.  Accordingly, on the evidence before it, the Tribunal is satisfied the visa applicant does not intend to work in Australia.

22. There is no evidence or indication that the visa applicant wishes or intends to study or participate in any training course in Australia, and the Tribunal is satisfied that he does not have an intention to study or train while in Australia.  In addition, the evidence does not indicate that he has health problems or requires care or assistance.  The Tribunal considers that this goes to a lack of extrinsic reason for him to want to remain in Australia past the expiry of a Visitor visa.  Further, there is no evidence before the Tribunal to suggest an onshore visa pathway that might be an incentive for him to remain in Australia. 

23. In the circumstances, the Tribunal considers that an appropriate security bond would be a sufficient incentive to ensure compliance, particularly as the evidence indicates there are multiple factors to assist with his compliance, including the review applicant’s ability to sponsor her mother and other family members to Australia in the future.  

24. Having carefully considered the available as a whole, the Tribunal is satisfied that the visa applicant want to visit Australia for genuine reasons and not for a purpose other than a genuine temporary stay to visit his sister and her family and his two daughters. 

25. For these reasons, the Tribunal is satisfied that he 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

26. 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