1517029 (Migration)

[2016] AATA 4177

1517029 (Migration) [2016] AATA 4177 (25 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yang WANG

CASE NUMBER:  1517029

DIBP REFERENCE(S):  BCC2015/3398174

MEMBER:Mary-Ann Cooper

DATE:25 July 2016

PLACE OF DECISION:  Melbourne

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 25 July 2016 at 4:19pm

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 20 November 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 18 November 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 s/he was not satisfied that he genuinely intended to stay in Australia temporarily.

5. The applicant appeared before the Tribunal on 15 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 travel. 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 (cl.600.211(a)).

11. The last substantive visa held by the applicant was a Visitor visa. The applicant has not departed in compliance with the cessation date of that visa having reapplied for the same visa, however there is no evidence that he has breached any conditions of his last held substantive visa. Therefore cl. 600.211(a) is met.  

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.600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

13. There is no information before the Tribunal suggesting that the visa applicant would engage in any work, study or training in Australia.  He has provided evidence of significant savings which appear to be sufficient to support him for the length of his visa. Accordingly, the Tribunal is satisfied that the visa applicant intends to comply with visa conditions 8101 and 8201. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

14. As recorded in the delegate’s decision, a copy of which was provided with the review application, the applicant arrived in Australia on a subclass 485 visa on 22 September 2014 which ceased on 26 May 2015. On 25 May 2015 he was granted a subclass 600 visa in effect until 20 November 2015, two days before which he applied for this visa. The purpose of his stay on his last visitor visa application was to travel around Australia and in this application he sought to stay until 20 May 2016 to undertake further travel. The delegate noted that out of the last 505 days he had been outside Australia for only 42 days. The delegate noted that the purpose of a visitor visa was to undertake tourist activity, not maintain residence. On that basis the delegate was not satisfied that the applicant genuinely intended a temporary stay in Australia and the visa was refused.

15. As indicated by his visa application, the visa applicant is a Chinese citizen, born in 1986, who had been in Australia travelling with his wife. He responded that his usual country of residence is Australia. Under “current employment details” he responded that his employment status was “other” and that he graduated from Central Queensland University in 2012 and has been travelling through Australia with his wife but has found that “it was not enough.” He claimed that he would “like to take some more time travelling before going back to China.” He claimed he and his wife were self-funded.

16. At the hearing the tribunal asked the applicant about his visa history. As confirmed by the Department’s movement records, he has been in Australia since arriving in 2002 on a student visa. Before the expiry of that visa he then proceeded to claim, and was granted, several further student visas, all applied for onshore, taking the length of his stay in Australia to 15 March 2013, just prior to which he applied for and was granted a subclass 485 visa. The tribunal asked why he applied for that visa. He said that his then employer had asked him to stay and he thought that it would be good to get some experience before he returned to China. He said his skilled occupation was that of an Accountant (General). He claimed that he had worked fulltime, 6 days per week while on that visa. He told the tribunal that he had not had any time to travel, even while on a student visa, because he had also been working part-time. He said he now wished to relax and see further places in Australia such the Northern Territory and the Great Barrier Reef. He provided documents demonstrating his past tourist activities in Australia and said that he and his wife had not had enough time to see everything they had wanted to see.

17. The tribunal asked why he had not departed Australia when that visa ceased. He said there were still places that he and his wife wished to see. He said she had been in Australia on a student visa and had successfully applied for and been granted three tourist visas but he had been refused. He said he did not understand the reason for this and maintained that he had wanted to travel in Australia. He claimed that his wife had found she was pregnant and had now returned to China and that their child is due in December, 2016. He maintained that he wished to undertake further travel but would return to China in November to be with his wife  and commence employment.

18. The tribunal observed that he had ample opportunity in the last 14 years to travel and that his ongoing visa applications suggested that he had no intention of returning to China but was using the migration system to prolong his stay in Australia. The applicant denied this,  maintaining that he had not done anything illegitimate and had always abided by the conditions of his visas. He claimed he is in good health, of good character and has the financial resources to support himself. He said he felt this visa refusal was very unfair, particularly when his wife’s application had been granted. She had been forced to return to China because of her pregnancy and he maintained that he would join her after he has undertaken some further travel. He stated that if the visa is granted he will stay until November and then return. The tribunal asked him why he specified 20 May 2016 as the date to which he wished to remain in his visa application. He responded that his agent had advised he could not stay on a tourist visa for over 12 months and 20 May 2016 was that 12-month end-date. The tribunal observed that it was now past that date and he had 12 months to undertake the travel he wished to undertake. He responded that, because the visa had been refused, and it had taken so long for the review to be heard, he had been unable to plan or travel. He said the refusal made him feel bad and it had annoyed him a lot because he considered it unfair. The tribunal attempted to explain the decision and the requirement that he genuinely intend a temporary stay. It observed that he had been in Australia continuously almost since 2002. He claimed that when he was studying he had returned to China regularly on school breaks but when he started fulltime work he had been unable to do so. Departmental records demonstrate his annual departures from Australia from 2002 to 2009 and 2012-2014.

19. The tribunal asked the applicant about his ties to China and Australia. He claimed that he had nothing in Australia, only his car. He said his parents, his wife and his wife’s parents are in China. He also claimed that he had property in China and has been offered a job in China to commence next year.

20. Following the hearing,  he provided documents confirming his wife’s pregnancy and EDC of 17 December 2016. He also provided correspondence from his wife confirming her pregnancy, the visa applicant’s promise to return to China in November 2016 and their plans for him to remain and start work in China. Copies of his wife’s passport were also attached.

21. The tribunal has given weight to the significant period of time the applicant has already spent in Australia and on this basis retains reservations that he genuinely intends a temporary stay for the purposes of tourism. Conversely, it considers that his lack of ties in Australia, the presence of his parents in China and his wife’s pregnancy and presence in China, provide a compelling incentive for his return. There would also appear to be little in his present circumstances to encourage him to remain in Australia  beyond his stated reasons.

22. For these reasons, the Tribunal is persuaded that the visa applicant only wishes to remain in Australia temporarily, until November 2016, to travel around Australia. There is nothing in the evidence before the Tribunal which indicates that he intends to act in any way inconsistently with any of the abovementioned visa conditions and the Tribunal is satisfied that he intends to stay in Australia temporarily for the purpose of tourism (cl.600.211(b) and (c)).

    CONCLUSION

23. 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

24. 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.

    Mary-Ann Cooper
    Member