1607367 (Migration)

[2016] AATA 4704

1607367 (Migration) [2016] AATA 4704 (22 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms YIJUN WANG

VISA APPLICANT:  Ms YIJIE WANG

CASE NUMBER:  1607367

DIBP REFERENCE(S):  01625730

MEMBER:John Billings

DATE:22 November 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 22 November 2016 at 4:26pm

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 16 May 2016 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, Ms Yijie Wang, a 53 year old national of China, applied for the visa on 10 May 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case Ms Wang applied for the visa seeking to satisfy the primary criteria in the Tourist stream: Form 1419 CHS was used.  

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 he or she 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 Ms Wang did not meet cl.600.211.  The delegate considered that Ms Wang had not demonstrated that she had sufficiently strong financial, family, employment or other commitments in China that would be an incentive for her to return to China.  The delegate referred to a statement in the application that Ms Wang was unemployed.  The delegate referred to evidence of funds held by Ms Wang but remarked that they were recently deposited in her bank and did not sufficiently demonstrate her financial wherewithal. 

5. The review applicant is Ms Wang’s sister, Ms Yijun Wang (“the review applicant”).  She applied to the Tribunal for review on 25 May 2016.  

6. The review applicant is a 45 year old Australian citizen, born in China.  She is married with three children.  She is a property developer and the owner of a child care facility.  Her mother has been visiting from China and helping her look after the children.  She wants her sister to come to Australia and help her after her mother returns to China next month. 

7. The review applicant appeared before the Tribunal on 18 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from by telephone from Ms Wang.  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 husband Mr Bo Yang. Mr Yang attended the Tribunal hearing.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether cl.600.211 is met.  This 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.

11. In the present case, Ms Wang seeks the visa for the purpose of visiting the review applicant.  This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221.

12. 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)).

13. 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.

14. The Tribunal must also consider all other relevant matters (cl.600.211(c)).

15. The Tribunal heard that Ms Wang has never travelled outside China.  As Ms Wang has not previously been granted a visa for Australia the question whether she has complied substantially with relevant conditions does not arise. 

16. In evaluating the whole of the evidence, the Tribunal’s concern is not that Ms Wang does not intend to comply with visa conditions 8101 or 8201.  Rather, because the Tribunal has reservations about Ms Wang’s credibility – as discussed below - the Tribunal is ultimately not satisfied that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

17. The review applicant told the Tribunal that she was unaware of significant personal and other details relating to Ms Wang.  But the evidence was also vague and contradictory in important respects. 

18. Ms Wang is divorced.  She told the Tribunal that she has in fact been married and divorced twice but she had not told the review applicant about her second marriage.  Ms Wang told the Tribunal that she currently has a boyfriend and is contemplating marrying him next year but she had not told the review applicant about that either. 

19. Ms Wang told the Tribunal that she did not intend to spend a long time in Australia however the review applicant had by then told the Tribunal that she needs her sister’s help with the children and that Ms Wang is willing to help her for several months.  Further to this, Ms Wang seemed not to know of an itinerary that the review applicant arranged at about the time Ms Wang made the visa application.  Ms Wang said that her intention at the time was to visit Australia for about two weeks but the itinerary shows proposed travel for three months from June to September 2016.   Commenting on that, the review applicant said that she had not talked to Ms Wang about the dates in the itinerary. 

20. Ms Wang stated in the visa application that she was unemployed whereas the Tribunal was told that she teaches the piano privately.  The review applicant sought to explain the apparent contradiction by saying in effect that the translation of “unemployed” in the application form is not accurate.  The review applicant said that Ms Wang was “laid off” or voluntarily resigned at the age of 45 when the structure of the work unit changed.  She said that Ms Wang would receive a pension from age 55.  The review applicant described Ms Wang as a high income earner but she could not say anything about the number of students Ms Wang has, the hours per week she teaches, or the income she earns.  Ms Wang at first told the Tribunal that she had been teaching piano for 12 years but she then said it was for eight years – since the time she left the work unit.  She said that she now has 40-50 students though in the past seven days – a more or less typical period - she has taught one or two students per day earning 300 RMB (approximately $A59) or 600 RMB (approximately $A118).  She said she will receive a pension in the future. 

21. The review applicant told the Tribunal that it was her “guess” that Ms Wang owns her home outright.  Ms Wang said she did own the property.  There was a document submitted to the Department that was said to be a property certificate but there was no English translation. 

22. The review applicant told the Tribunal that for 10 years Ms Wang has lived in Henan province.  Her parents and brother live in Shenzhen.  The review applicant said that Ms Wang would not leave Henan because her daughter was buried there.  In her evidence Ms Wang did not mention her daughter.  She actually said that if it were possible for her to live in Shenzhen (where she visits on holiday) she would do that. 

23. The Tribunal’s most serious concerns relate to evidence about funds held in Ms Wang’s bank account.  When she was asked about that, Ms Wang was evasive and became argumentative.  Her first response was to say that the Tribunal had the documents (so she should not have to talk about that).  She said she could not remember amounts deposited but thought “maybe” there was a figure of 40,000 or 50,000 RMB.  Asked about the figure 150,000 appearing in a statement dated April 2016, Ms Wang said that she divided the payments made into the account.  She added that she asked the review applicant to deposit funds for her.  (The review applicant however told the Tribunal that she had not deposited funds for Ms Wang).  Ms Wang was vague about the account or accounts the funds originated from.  There was an untranslated bank statement submitted to the Tribunal.  The Tribunal hear that it relates to an account held by Ms Wang.  The statement has dates ranging from November 2015 to May 2016.  Numerous deposits are shown.  Only some of them appear consistent with Ms Wang’s evidence about earnings from piano teaching.  The overall trend is that the balance has declined from the first entry of just over 140,000 RMB to the final entry of just under 88,000 RMB, possibly indicating that Ms Wang has not been able to maintain funds of 150,000 RMB or thereabouts even if she generated them in the first place.    

24. The review applicant was unaware of Ms Wang’s earnings.  She said she was also unaware of the amount or the source of funds deposited into Ms Wang’s bank account at or about the time of the visa application.  She said that she never asked Ms Wang about those matters. 

25. The Tribunal accepts that although Ms Wang has a sister in Australia most of her family resides in China.  The incentive for Ms Wang to return to China because she has family there must be considered in light of evidence that for a decade she has lived separately from them.  The evidence that she is contemplating marrying a man in China must be considered in the light of evidence that she has not told the review applicant about him.  The evidence does not satisfy the Tribunal that there are family ties in China that outweigh family ties in Australia substantially if at all.  

26. Ms Wang’s expectation of a pension, and her interest in or ownership of property in China, may provide some incentive to return to China.  On the other hand the Tribunal heard that she would not receive a pension until she reaches age 55 and she may opt to sell or lease the property.  Significantly, Ms Wang told the Tribunal that she would move to Shenzhen if possible, indicating that she is prepared at least not to maintain the property as her home. 

27. The claims and evidence about Ms Wang’s employment were contradictory.  Ms Wang in effect expressed a loyalty to her students that would have her return to China after only a very short time in Australia.  But the conflicting evidence about the time she proposed to spend in Australia undermines her evidence on the subject and her evidence generally. 

28. It is the evidence about funds held in Ms Wang’s bank account that is of greatest concern to the Tribunal.  Ms Wang did not give satisfactory evidence to show that the funds originated from her. 

29. The Tribunal is mindful that the review applicant’s mother has visited Australia and there is no indication that she has failed to comply with relevant visa conditions. 

30. The Tribunal must consider Ms Wang’s circumstances and the evidence relating to her. 

31. The Tribunal is concerned by the anomalies in the evidence that it has referred to.  On the evidence before it the Tribunal is not satisfied that Ms Wang has an incentive to return to China that would outweigh her incentive to remain in Australia.  In particular, the Tribunal does not accept that the evidence concerning Ms Wang’s funds accurately represents her financial position in China.  The Tribunal does not accept that that evidence supports Ms Wang’s claims. 

32. For the above reasons the Tribunal is not satisfied that Ms Wang 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

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

    John Billings
    Senior Member