1712313 (Migration)

[2018] AATA 2234

1712313 (Migration) [2018] AATA 2234 (16 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712313

MEMBER:Christine Cody

DATE:16 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 May 2018 at 11:27am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Whether the applicant genuinely intends to stay in Australia for the purpose for which the visa was granted – Adverse migration history – Significant period spent in Australia unlawfully previously – Ties to home country do not outweigh adverse migration history – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, Schedule 8, Conditions 8101, 8201, 8503, 8531

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 June 2017 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 is a citizen of the Peoples’ Republic of China. The review applicant is his sister.

3. The visas applicant applied for the visa on 18 May 2017. He provided a visa application form which stated:

   ·     The visa applicant was born in Shanghai, China, and is [a particular age].

   ·     If the visa is granted, he would like to visit his sister and her daughter, for a two week period, [in] August 2017.

   ·     He will pay for his trip in Australia by card.

   ·     He has a daughter, born [on a particular date], who would remain in China while he visits Australia.

   ·     He has been retired for two years.

4. Supporting documents provided included identity documents, certificates of deposit showing that the applicant deposited 50,000RMB in 2013 in his savings account. Other documents were not translated. The Tribunal noted that some documents were provided to it, with translations, prior to the hearing. The review applicant told the Tribunal that her daughter and the visa applicant had organised the documents between themselves; when asked whether they would have ensured that all relevant documents had been translated and provided to the Tribunal, and that there was no relevant or important document which was untranslated, she agreed.

5. Also provided was the following:

   ·     A letter from [Ms A] inviting her uncle to come visit for three months. He will be responsible for his airline ticket but she will cover all expenses during the visit in Australia, including local transportation, accommodation and all other related expenses. A copy of her Australian passport was provided, as was a copy of the Chinese passport of the review applicant[1], and a copy of the identification page of the visa applicant’s passport issued in [2008].

   ·     Family composition form stating that the visa applicant’s father is deceased; his mother resides with him, as does his [daughter]. He has a sibling in China and a sibling, the review applicant, in Australia.

   [1] The review applicant became a permanent resident in 2012.

6. 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.

7. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The delegate was concerned that, despite the visa applicant providing evidence of financial standing, in considering whether the visa applicant would likely depart Australia at the end of a temporary visa, the delegate placed significant weight on his immigration history. During his last trip to Australia, he arrived in 1997 as a temporary visa holder, and did not depart after that visa ceased. He remained in Australia unlawfully and did not depart until 24 August 2002. Given the adverse immigration history, the delegate was concerned that if provided with an opportunity to enter Australia on a temporary visa, he would not depart Australia within the period of stay authorised by the visa.

8. The Departmental file also contained notes repeating the contents of the delegate’s decision record, and noting that taking into account the visa applicant’s adverse immigration history, the application would be refused.

9. There is no non-disclosure certificate on the Departmental file.

   The Tribunal 

10. The review applicant’s daughter lodged an application for review with the Tribunal. It did not contain details of the visa applicant. The Tribunal forwarded a letter to the review applicant’s daughter noting that it appeared she did not have standing to apply for review, but that the review applicant did, and that the details of the visa applicant should be completed in the application form. The Tribunal subsequently received an amended application form, with the review applicant and the visa applicant noted on that form. The Tribunal considers that it has jurisdiction to consider the application.

11. In support of the review application, the review applicant provided the Tribunal with a copy of the delegate’s decision record, as well as a letter from the visa applicant. That letter addressed matters including the visa applicant previously overstaying in Australia. It stated that:  

    My name is [name removed] [birth date removed], I have recently received a letter from the department of immigration that my application for visitor visa subclass 600 has been refused.

    I know that I have been to Australia in 1997 but fail to return until 2002. I was very regret doing that. However, my niece gave a birth to the first grandchild in our family in 2014. My sister is staying in Australia helping my niece to look after her son. My niece couldn’t bring her son back to China for a holiday because she is undergoing a divorce hearing so her son cannot be taken overseas. I haven’t see my sister for nearly a year, my niece for over 2 years and her son since he was born.

    I really wish the immigration could give me this chance to go to Australia and visit them. My niece’s son is having his 3^rd birthday on [a particular date in] 2017, so my sister and my niece really wish that I could be there to celebrate with them. I promise that I will return back to China before the visa is due. I have provided all my financial status. I have my own family bond in China, I have my own daughter and mother to look after (I have attached their passport for you to review), so I won’t stay in Australia after my visit. My niece and my sister can be my sponsors and their details have been provided in the online application form. I beg that you could consider my application again so I could visit my sister, niece and her child. If you want any more information from me, please don’t hesitate contacting myself or my niece [Ms A]. The contact details of her have been provided in the online application form too.

12. The Tribunal wrote to the review applicant, informing her that on the evidence before it, it was unable to make a favourable decision. She was invited to attend a hearing before the Tribunal. The Tribunal was subsequently informed that the review applicant was visiting her mother in China, and would not be able to attend the scheduled hearing in March 2018. It was indicated that she would return in May 2018 and requested that the hearing be postponed until then. The Tribunal granted a postponement of the hearing until 3 May 2018, and was subsequently informed that the review applicant would still be in China, but that the hearing could take place by telephone. The Tribunal was not informed at that time of any proposed return date for the review applicant.

13. Submissions and supporting documents (with translations) were provided showing: that the visa applicant and another person own property in Shanghai; bank statements show funds being paid in to a bank account in the visa applicant’s name; passport stamps show the visa applicant travelld to [Country 1] for three days in August 2016; as well as:

    ·     A further letter from the visa applicant explaining that when he visited Sydney, he fell in love with Sydney and searched for a way of how he could stay in Australia legally but all the methods did not seem to work for him. He made a decision to keep staying in Australia after his visa had expired. He had to work illegally and then very quickly five years passed, and although he loved Australia, he felt something was missing, and he hadn’t seen his elderly mother for five years and he didn’t want to be a person without ID anymore. So he left Australia on 24 August 2002. He now has a family in Shanghai and his mother lives with them. His daughter is [a minor]. He has retired mainly responsible for taking care of his daughter and mother. He will stay in China for the rest of his life with his family. He would like to visit Australia because his sister spends a large amount of time in Sydney and his niece has a young son. He will not stay in Australia after his visa expires because he has a daughter and mother to look after.

    ·     A letter from the review applicant stating that she is a permanent resident in Australia and spends most of her time in Australia. She has had a lot of friends and family members come and see her. She does not recall sponsoring anyone because it is “easy” for them to get a tourist visa in Shanghai without her sponsorship. She provided details of stay for her mother (2011, 2015, 2016); two nieces (one visited twice in 2016, the other visited once in 2015); two sister-in-law’s (one visited in 2015, one visited in 2017); and her friend visited in 2017.

14. Prior to the hearing, the Tribunal forwarded a letter pursuant to s.359A to the review applicant; the response being returnable on 15 May 2018 (after the hearing date), which referred to the following information as a concern:

    Departmental and Tribunal records indicate that your brother, the visa applicant, arrived in Australia on 11 June 1997 holding a temporary short stay business visa. He lodged an application for a protection visa on 7 October 1997, which was refused by the Department on 27 October 1997. He then lodged an application for review of the delegate’s decision to refuse a protection visa, and the Tribunal (differently constituted) affirmed the decision on 2 November 1998. Your brother then remained unlawfully present in Australia from 7 December 1998 (when his bridging visa expired) until 1 July 2002 (3.5 years) at which time enforcement action was taken against him by the Department when he was located working and he was detained. He was then granted a Bridging Visa E on 22 July 2002 because he had then obtained a valid passport and a ticket to depart Australia. He departed shortly thereafter on 24 August 2002.

    This information is relevant because your brother provided a letter to the Tribunal in support of the current application for review of his visitor visa application which acknowledged that he remained for five years in Australia, but which did not mention that he had claimed protection (a fear of returning to China because he faced a real chance of persecution), nor did he provide the reasons why he claimed protection, nor did he say what happened when he returned. This indicates that he was not prepared to be truthful with the Tribunal as to his circumstances in China and while he was in Australia, and why he did not previously want to return to China.

    The information is also relevant because it indicates that he was prepared to remain in Australia unlawfully and disregard visa requirements by failing to leave Australia when his protection visa application had been rejected and his bridging visa expired in 7 December 1998.

    The information is also relevant because his letter to the Tribunal indicates that the reason why he decided to return to China after five years was because he missed his mother and he didn’t want to be a “person without ID anymore”; he failed to declare to the Tribunal that the reason why he had left Australia was because he had been located and detained by the Department.

15. The Tribunal noted its concern that, while not having made up its mind, the above indicated that the visa applicant was prepared to provide information which was misleading in order to obtain a visa outcome and that he is not a witness of truth and that he does not intend a genuine visit to Australia for the purpose for which such a visa is granted.

16. The review applicant appeared before the Tribunal by telephone from China on 3 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, who was with the review applicant. The review applicant’s husband was also present, as a support person. At the end of the hearing the Tribunal asked whether there was anything else that anyone else want to say, and the review applicant said no. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

17. At the commencement of the hearing the Tribunal noted that the review applicant was in China and that the hearing was occurring by telephone and if there was anything she did not feel comfortable discussing by telephone she could always use the opportunity to tell the Tribunal this after the hearing. The review applicant was aware of the s.359A letter and that a written response was due by 15 May 2018. The Tribunal noted that any further submissions could be added to that letter. The visa applicant was also advised that if he did not want to discuss anything on the telephone he could raise it in writing after the hearing.

18. When the Tribunal raised at hearing that it had concerns as a result of the matters raised in the letter it had sent, and asked whether the review applicant wanted to discuss any of this with the Tribunal at the hearing, she said that she did not wish to discuss it, but was prepared to provide a written response.

19. The visa applicant volunteered to the Tribunal at hearing, when asked if there was anything he wanted to discuss, that he had been in Australia from 1997 to 2002, he had really liked Australia, he was younger and didn’t really think of the rules, and then he was detained while working.

20. Other evidence given by the review applicant included the following: she arrived in China on 28 January 2018 and has remained there for the last three months. She intends to go home on 10 May 2018. She is retired, and has spent this time in China seeing family. Her family members in China only consist of her mother, the visa applicant and another brother who lives about one hour away but is very busy with his business and they don’t see him much. The visa applicant has a wife who [works]. The purpose of the visit is to see the review applicant’s daughter and her child who cannot come to China because of their current divorce proceedings in Australia. He will definitely return because he takes care of his wife, his child, and his mother, and he has his own property. He has a pretty comfortable life in China (the visa applicant gave similar evidence).

21. After the hearing, the review applicant provided correspondence responding to the Tribunal’s concerns (and information). It was stated that:

    ·     It has been over 20 years since he first arrived in Australia, he had wanted to stay in Australia so he had seen a migration agent who told him that he could extend his business visa for one month and could apply for protection. The visa applicant paid the application fee and prepared all the documents and the visa applicant just signed. He always thought the agent extended his business visa for a month and then started to apply for the protection visa, until he found out that his application had been refused and he had a bridging visa. He always thought, via the agent, that the visa application was being processed. He doesn’t understand English and didn’t know anyone in Australia.

    ·     It was true that he was located at work and then detained in 2002. When he was in the detention centre he was told that he could appeal, but he didn’t and decided to return to China himself. That is why in his letter he stated that he really missed his mother, and he doesn’t want to be a person without ID anymore. He paid the bail, bought a ticket himself and returned to China before the requested time. He did not offer misleading information, but that was truly how he felt at the time. He notes that he also explained this during his telephone hearing.

    ·     He did not provide this information when he initially wrote to the Tribunal in support of the application for review because he thought the Tribunal already knew about it. Additionally, it’s been 20 years, and he barely remembers the details of what happened. His authorised recipient (his niece) told him there was no particular format for writing a letter so he thought he just needed to emphasise why he wanted to stay in Australia, what he had been doing when he was staying in Australia illegally, and why he wanted to go back to China at the end. He didn’t mean to provide misleading information, but that’s all the facts he can recall and he is sorry if there is any misunderstanding.

22. The Tribunal has considered these responses, discussed further below. It also notes that the visa applicant did not offer any reasoning behind the claim for protection (namely that he had any particular reason to fear harm) other than because he wanted to try to stay legally in Australia.

23. Further relevant evidence and information is set out below.

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

    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 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 visa applicant seeks the visa for the purposes of visiting his sister, an Australian permanent resident. 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. 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):

    ·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.

1. The Tribunal has also considered all other relevant matters (cl.600.211(c)). In doing so, the Tribunal considered, but is not bound by, the Department’s policy guidance contained in its Procedures Advice Manual (PAM3).

2. However, the Tribunal is not satisfied that the visa applicant intends a genuine visit in Australia. The Tribunal’s concerns have arisen upon a consideration of the evidence referred to above and below, and for the reasons set out below.

3. As discussed with the review applicant, the Tribunal has to weigh up the incentives for the visa applicant to comply with a visa and the incentives for him not to comply, for example to seek to remain in Australia and lodge a protection visa (for which he would be entitled to apply).

4. The visa applicant has a significantly adverse immigration history in Australia. This occurred some 20 years ago, and the Tribunal has considered the argument that there has been a significant passage of time, the visa applicant’s circumstances have changed (he now has a wife and child in China, and he needs to look after his mother, and he has a comfortable life). However, even though this occurred some 20 years ago, the circumstances involve the applicant arriving in Australia holding a temporary visa, claiming protection, and after that application was unsuccessful, he remained in Australia unlawfully for years, continuing to work until he was detained, and only then did he decide to leave. The Tribunal is not prepared to accept his assertion that he believed that his visa application was “under processing” for five years, and it is not satisfied that the adverse immigration history should be disregarded just because of the passage of time. The Tribunal’s concerns in this regard were heightened because, as set out in the s.359A letter, it appeared that the visa applicant was prepared to mislead the Tribunal as to the reasons why he stayed in Australia and why he left. His letter to the Tribunal gave no indication that he had applied for a protection visa and thus claimed to fear harm in China, and he also presented his situation as one where he had decided voluntarily to return to China, failing to say that prior to his return, he had been caught working illegally, and detained by the immigration authorities. The Tribunal has carefully considered his explanations however it does not find them persuasive. The Tribunal is not prepared to accept that he didn’t mention these matters because he thought that the Tribunal knew all about them (matters such as his protection visa application and detention are not for example mentioned in the delegate’s decision record that that he provided to the Tribunal). The Tribunal considers that the applicant’s initial letter to the Tribunal in the current proceedings (he just wanted to go home because he missed his mother and wanted to be a person who had ID) provided a very different impression to the circumstances that applied at the time (protection claim against China made which the applicant appears, according to his response, to have known about, and detention when located as working while unlawfully present, and effectively being forced to make a decision to leave Australia (or to appeal, as he now claims). The Tribunal considers that the above undermines his credibility, and the assurances made that he only intended a genuine visit.

5. The Tribunal has considered the evidence of both applicants that the visa applicant would like to see his niece and her child who was born in 2014. The Tribunal put to the review applicant that if it was so important for the visa applicant to see his niece and her child, it did not understand why the visa applicant did not apply for a visa earlier than in 2017. The review applicant initially did not respond, instead just repeated that her daughter could not take the child to China because she was in divorce proceedings. The Tribunal explained that it was trying to understand why the visa applicant did not apply for a visa to Australia earlier, however the review applicant just repeated her response again. When the Tribunal noted she was not responding, she finally said that it was because his daughter, who is now 10 years old, was young. The Tribunal noted that if only a short visit was proposed, as the review applicant said, there appears to be no reason why he could not have applied to visit Australia before 2017. The review applicant again repeated that the daughter was young. She then said that the visa applicant’s wife needed to work (which is the same circumstance as currently applies). The Tribunal did not find the explanations to be satisfactory and considers that if it was very important to him to see the daughter and the child then he could have applied to come much earlier. The review applicant repeated that daughter was young. She then added that another reason was that their mother had gone through a car accident. The Tribunal considers that if that was the reason, it would have been mentioned earlier; instead she kept insisting it was because the daughter was young. Although the Tribunal is prepared to accept that the visa applicant would like to visit his niece, the Tribunal is not prepared to accept that this has been considered by the applicants as an important reason for the visa applicant to come to Australia, given that the visa applicant did not apply until 2017.

6. The Tribunal has considered the review applicant’s claim that other family members have complied with the terms of their visas when visiting Australia. The Tribunal notes however that the visa applicant did not do so when he was in Australia. The Tribunal is prepared to accept, for the purposes of this decision, that she had relatives and friends who have come to Australia and abided by the conditions of the visas, however each case is to be determined on its own merits, and in the circumstances of this particular visa applicant the Tribunal is not satisfied that he has a genuine intention only to visit. In this particular case, the visa applicant has a past history of having disregarded Australian immigration laws, and having arrived on a temporary visa and sought to stay by obtaining a permanent visa.

7. At the hearing, the Tribunal noted that the concerns it had expressed in the s.359AA letter remained and that it was concerned that the visa applicant may seek to stay, noting that he had previously stayed for a long time in Australia. She said he will not stay, and the only purpose is to visit the niece and the child. She said both she and her daughter promised that he will return. The Tribunal noted that if an application for a further stay was lodged, he could then seek to apply to bring out his wife and child. She said this would not occur. The Tribunal noted that his assets would not necessarily be an incentive not to stay in Australia; it also noted that assets can be transferred, and his money could be used to assist in the care of his mother. While the Tribunal accepts that the applicants’ mother is elderly and lives in China, it is not prepared to accept their assertions that there is no one to care for her, especially noting that the review applicant just recently spent three months in China spending time with her mother.

8. While the Tribunal notes that the visa applicant’s passport was provided, showing that he visited [Country 1] in 2016 and returned to China, this does not overcome the Tribunal’s concerns. When the Tribunal weighs all of the above, it is not able to be satisfied, in light of its concerns, that the visa applicant only intends a genuine visit.

9. 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

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

    Christine Cody
    Member