1515543 (Migration)

[2016] AATA 4108

1515543 (Migration) [2016] AATA 4108 (14 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zhihong Chen

VISA APPLICANT:  Ms Meiqing He

CASE NUMBER:  1515543

DIBP REFERENCE(S):  BCC2015/3102758

MEMBER:Linda Symons

DATE:14 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 14 July 2016 at 5:49pm

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 27 October 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 to the Department of Immigration and Border Protection (the Department) for the visa on 23 September 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 he was not satisfied that the visa applicant 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 14 July 2016 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 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 sons and sightseeing. This is a purpose for which a visa in the Sponsored Family stream may be granted.

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. There is no evidence before the Tribunal to indicate that the visa applicant has travelled to Australia 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 (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.

13. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for her visit to Australia. The review applicant gave evidence that he is working as a bar tender and earns approximately $1,800.00 per week gross. He stated that the only asset he has is savings of approximately $60,000.00. He stated that he has no debts. He provided the Department with copies of two payslips, his Notice of Assessment from the Australian Taxation Office for the financial year ending 30 June 2015 and a bank statement from the Commonwealth Bank of Australia for the period ending 5 July 2015.

14. The review applicant gave evidence that the visa applicant has never been in paid employment. He stated that she has no source of income and that he supports her financially. He stated that she inherited a property from her parents but has no documentary evidence of this. He stated that he will pay for visa applicant’s airfare and living expenses in Australia. He stated that she will live with him, his father and his brother. He stated that his parents divorced in 2008, his father remarried an Australian permanent resident and immigrated to Australia with him and his brother and divorced his second wife in 2011. He stated that the visa applicant has no intention of working in Australia.

15. The visa applicant confirmed that the review applicant will pay for her airfare and living expenses in Australia. She stated that she will bring 2000 yuan ($393.84)[1] with her to Australia. When asked whether she is planning to work in Australia, she responded that she “can’t really do things”.

    [1] Currency converter. ( CNY to AUD).

16. In considering whether the visa applicant intends to comply with condition 8531, the Tribunal discussed the length and purpose of her proposed stay in Australia. The review applicant gave evidence that he would like her to come to Australia for 12 months and live with him during that period. He stated that he has not returned to China since he came here 8 years ago. He stated that he has been too busy with his job to return to China. He stated that the visa applicant misses him. He stated that they would not be able to have “a meaningful life” together if she only came here for 3 months. When asked what the visa applicant is going to do for 12 months whilst he is busy working, he responded that she will go shopping and buy food for him. He stated that if he has a day off he can take her out to have some fun.

17. The visa applicant gave evidence that she would like to visit her son for 1 year. When asked what she is planning to do for 1 year whilst her son is working, she responded that if there is something to do she will do it. She stated that she wants to “accompany him to have a life with quality”. She stated that he works every day and does not have time so she will cook for him.

18. The Tribunal discussed with the review applicant the incentives for the visa applicant to return to China and the incentives for her to remain in Australia. The review applicant gave evidence that his maternal grandparents have passed away but his paternal grandmother is alive and needs someone to look after her. He stated that even though his parents are divorced his mother still has to look after his paternal grandmother. When asked why his paternal aunt is not looking after her mother, he responded that in his area it is the males who look after the parents. When asked who would look after his paternal grandmother when his mother is in Australia for 1 year, he responded that his paternal grandmother is relatively healthy and knows that he wants to be with his mother so she is alright to be by herself.

19. The review applicant gave evidence that his mother applied for a Parent visa in 2015 to immigrate to Australia. He stated that he was told that it will take more than 10 years to process. His migration agent stated that it will take about 15 years to process. The Tribunal raised as an issue with the review applicant the fact that the visa applicant’s application for a Parent visa indicates her desire to live in Australia permanently and that this raises concerns in relation to her intentions with regard to this visa application. He responded that the visa applicant has to wait in a queue for the Parent visa for a long time and anything could happen during that time.

20. The Tribunal raised as an issue with the review applicant the fact that he claimed that his paternal grandmother needed someone to look after her and this was an incentive for the visa applicant to return to China at the end of her holiday in Australia but the visa applicant was able to come to Australia for 1 year. The Tribunal noted that this indicated that his paternal grandmother did not need someone to look after her or she had someone else looking after. He responded that his paternal grandmother is aware that the visa applicant wants to visit him and she is willing to let her come to Australia for 1 year to visit him.

21. When the Tribunal noted that his paternal grandmother may also be willing for the visa applicant to live in Australia permanently if she has applied for a visa to do so, the review applicant responded that he does not know how long it will take to get a Parent visa and it could be 10 years to 20 years. He stated that if he wanted the visa applicant to immigrate to Australia immediately he would have increased the amount of the deposit but did not do that. This response makes little sense and does not address the issue raised by the Tribunal.

22. The Tribunal is not convinced that the review applicant’s paternal grandmother needs to be looked after or that her presence in China would provide sufficient incentive for the visa applicant to return to China at the end of her holiday in Australia. The visa applicant is not employed and she has not claimed to have any assets in China. She is reliant on the review applicant for her financial support. Her two children are both permanent residents of Australia. The Tribunal raised as an issue with the review applicant its concerns that the visa applicant has strong incentives to remain in Australia and few incentives to return to China and that this raised concerns in relation to her claimed intentions to only visit Australia. He responded that he is prepared to lodge a security bond of $10,000.00 if required to do so. The Tribunal is not satisfied that this would ensure the visa applicant’s compliance with the conditions of the Visitor visa if granted one.

23. Having considered all of the evidence, the Tribunal accepts that the visa applicant misses the review applicant and would like to see him and spend time with him. The Tribunal accepts that she applied for a Parent visa in 2015. The Tribunal is of the view that this is indicative of her desire to live in Australia permanently with her two sons. The Tribunal accepts that the visa applicant’s mother in law will remain in China if she comes to Australia. The Tribunal does not accept that this would provide sufficient incentive for her to return to China. The Tribunal is not satisfied that the incentives for the visa applicant to return to China outweigh the incentives for her to remain in Australia.

24. For the above reasons, the Tribunal 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 that the requirements of cl.600.211 are not met.

    DECISION

25. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Linda Symons
    Member