1600857 (Migration)

[2016] AATA 4102

1600857 (Migration) [2016] AATA 4102 (12 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs JING YUAN

VISA APPLICANTS:  Mr ZHONG JIE
Mr XIAOKAI JIE
Miss MIAOYIN JIE

CASE NUMBER:  1600857

DIBP REFERENCE:  03351337

MEMBER:Deborah Morgan

DATE:12 July 2016

PLACE OF DECISION:  Adelaide

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

the Tribunal does not have jurisdiction in relation to the second named visa applicant; and

the Tribunal does not have jurisdiction in relation to the third named visa applicant.

Statement made on 12 July 2016 at 5:40pm

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 January 2016 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The three visa applicants named above applied for the visas on 15 January 2016. 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 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 visas, on the basis that the visa applicants did not meet cl.600.211. In the case of the first named visa applicant, the delegate found that Mr Jhong Zhie’s very quick marriage to the review applicant (his current wife) after divorce from his former wife, and his previous travel to Australia with his former wife raised serious concerns in relation to his intentions and genuineness. Additionally, the evidence in relation to the first named visa applicant’s financial circumstances failed to satisfy the delegate that he would comply with Visitor visa conditions and depart Australia within the validity of his visa.

5. In relation to the infant second and third named visa applicants, on whose behalf the first named visa applicant had applied for the visas, the delegate found that as no evidence had been submitted which indicated their circumstances were substantially different from the first named visa applicant, that they also did not meet cl.600.211. 

6. The review applicant appeared before the Tribunal on 10 June 2016 to give evidence and present arguments. The Response to the Tribunal’s hearing invitation stated there was no other person from whom the Tribunal should take evidence.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed in relation to the first named visa applicant and that the Tribunal has no jurisdiction in relation to the two secondary visa applicants.

   Jurisdictional issue in relation to the secondary visa applicants

10. In this case one application for review has been made in relation to the three visa applicants who are members of the same family.

11. The three visa applicants applied separately for Visitor visas and each submitted their own passport with their visa applications.

12. The delegate refused the three Visitor visa applications and gave separate decisions in relation to each visa applicant.

13. On review, the review applicant who is the first named visa applicant’s wife, made a combined application for review that included the first named visa applicant, and his two children who are the secondary visa applicants.

14. The review applicant paid the Tribunal the relevant fee for one application for review.

15. At the outset of the hearing the Tribunal explained to the review applicant that in this case, relevant migration law does not appear to permit a combined application for review and that the Tribunal only has jurisdiction to consider the application for review in relation to one of the visa applicants.

16. The review applicant consulted with her representative and told the Tribunal that she applied for review of the refusals in relation to the three five visa applicants. Her representative submitted that an error was made in the application for the visas which should have been in Sponsored Family stream.

17. The review applicant nominated her husband, the first named visa applicant as the person in relation to whom the application for review should proceed.

18. The Tribunal has considered the following relevant law: section 347 of the Act – Application for review of Part 5 – reviewable decision, Item 1236 Visitor (Class FA) Schedule 1 to the Regulations (which relates to Subclass 600 Visitor visa applications) and regulation 4.12 to the Regulations with respect to combined applications for Tribunal review.

19. The Tribunal considers there is no provision in s.347 of the Act or in the Regulations which enables the review applicant to combine the three visa applications at review. Specifically, none of the visa applicants combined their primary (visa) applications; they each hold individual passports and the review applicant did not sponsor the visa applicants for Visitor visas.

20. Because the time to make separate applications for review in relation to all three visa applicants has expired, it is not possible for the review applicant to apply for two further review applications. 

21. For the above reasons the Tribunal considers that the application for review in this case was impermissibly combined.

22. The Tribunal proceeds on the basis that it has jurisdiction only in relation to one of the visa applicants being the first named visa applicant whom the review applicant nominated for that purpose.

23. There are no valid applications for review before the Tribunal in relation to the other two visa applicants.

24. For the above reasons the Tribunal does not have jurisdiction with respect to the second named visa applicant or the third named visa applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the first named 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.

26. In the present case, the first named visa applicant seeks the visa for the purpose of spending time with his wife in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

27. 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)).

28. Department's movements' data in the first named visa applicant’s name indicates 22 movements into and out of Australia under Subclasses 676, 456 and 600 visas. His first arrival in Australia was on 14 May 2012 and his most recent departure was on 12 October 2015. The review applicant’s last fourteen movements were pursuant to Subclass 600 visas. 

29. The Department’s data shows that the first named visa applicant departed Australia within the validity of his visa on each of the 11 occasions he has entered this country.

    Whether intention to comply with Visitor visa conditions

30. 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)).

31. The conditions to which a visa in the circumstances of this case would be subject are those listed in subclauses 600.611(2), (3) and (4) that apply to applications in the Tourist stream:

    ·8101 – must not work in Australia (must be imposed)

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

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia (may be imposed).

32. The review applicant gave the following relevant evidence about the first named visa applicant’s intentions in relation to his proposed visit to Australia:

    ·The visa applicant would not work in Australia but will research business opportunities while onshore.

    ·The first named visa applicant would not study in Australia.

    ·The Tribunal asked if the visa applicant would apply for another visa if he entered Australia. She responded that she was not sure. Next she said that the first named visa applicant would “try to stay” in Australia after he had arrived.

    Other relevant matters - cl.600.211(c)

33. The Tribunal has also considered other matters relevant to genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. 

34. The first named visa applicant is a 48 year old male citizen of People's Republic of China. He married the review applicant in Australia on 17 December 2014 – refer marriage certificate (folio 89, Department file). Evidence of the first named visa applicant’s divorce from his previous wife on 24 October 2014 was provided after the hearing.

35. The review applicant told the Tribunal that the first named visa applicant’s relationship with his former wife had not been good for a long time and their divorce was a lengthy process.

36. The first named visa applicant applied (at the same time as the secondary visa applicants) to visit Australia for the month of February 2016.

37. The review applicant told the Tribunal that the incentives for the review applicant to return to China before any visitor visa expires are his two children and his businesses (property developments and import/export of foodstuffs) in China.

38. The review applicant said the first named visa applicant is a member of a rich family and he brought cash to Australia on each visit. She said he personally owns 3 or 4 apartments and a house. Owing to the economic downturn in 2015 the first named visa applicant’s businesses have not returned the same rate of profits as previously.

39. The representative referred to an error in translation with respect to the first named visa applicant’s income from his employment – refer certificate on the Department’s file, folio 101. The representative explained that the translation to English states the first named visa applicant receives 16,000 RMB income per year whereas in Mandarin the certificate states he receives 16,000 RMB per month. The Tribunal accepts that there has been an error in translation with respect to the amount of income earned by the first named visa applicant per annum.

40. The representative submitted that the first named visa applicant has adequate cash reserves to visit Australia. Pages of a bank account submitted with the visa application (folios 97-99: the account name is not translated) show deposits between May and November 2015 of large sums (e.g. 1,100,000 RMB; 703,609.17 RMB) quite often.  It was submitted that the bank account belongs to the first named visa applicant.

41. The review applicant stated that the purpose of the visa applicant’s six visits in 2015 was to spend time with her and to look for business opportunities in Australia. The first named visa applicant has an export business (abalone and beef) that operates out of Sydney. She did not know if the Sydney business is conducted by the first named visa applicant as an individual or otherwise. 

42. The review applicant said the first named visa applicant visited Australia in October 2014 at the same time as his former wife for the purpose of considering investment projects together.

43. The review applicant told the Tribunal that the first named visa applicant’s application for a Partner visa was refused earlier this year and she has applied for review of the decision to refuse the visa. The first named visa applicant is about to re-apply for a Partner visa.

44. The review applicant told the Tribunal that the first named visa applicant is a Buddhist and that he does not fear persecution for any reason.

    Conclusions in relation to the first named visa applicant

45. The Tribunal has weighed the evidence before it as outlined above and for the reasons that follow, it fails to be satisfied that the first named visa applicant would depart Australia before the expiration of any Visitor visa.  

46. The Tribunal fails to be satisfied that the first named visa applicant would depart Australia before any Visitor visa expires for the reason that the review applicant’s oral evidence was that he would “try and stay” in Australia once he had arrived on a Visitor visa. That evidence indicates that the first named visa applicant would apply for a further substantive visa in order to remain in this country.

47. The Tribunal is therefore satisfied that the first named visa applicant would apply to remain in Australia after the expiry of any Visitor visa granted to him and considers that such action would breach condition 8503 above which prohibits the grant of a further substantive visa after arrival on a Visitor visa (Tourist stream) except in the case of a protection visa. Accordingly, the Tribunal fails to be satisfied that the first named visa applicant would comply with condition 8503.

48. For the reasons stated, the Tribunal therefore fails to be satisfied that the first named visa applicant intends a genuine visit to Australia. 

49. For the above reasons the Tribunal is not satisfied that the first named visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that he does not meet the requirements of cl.600.211.

    DECISION

50. The Tribunal affirms the decision not to grant the first named visa applicant a Visitor (Class FA) visa; the Tribunal does not have jurisdiction in relation to the second named visa applicant; and the Tribunal does not have jurisdiction in relation to the third named visa applicant.

    Deborah Morgan
    Member