1724121 (Migration)

[2018] AATA 4144

1724121 (Migration) [2018] AATA 4144 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1724121

DIBP REFERENCE(S):  BCC2017/2533167

MEMBER:Linda Symons

DATE:12 September 2018

PLACE OF DECISION:  Sydney

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 12 September 2018 at 10:58am

CATCHWORDS
MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – trip to visit son – adequate financial resources to fund trip – incentives to return to China –property and pension – other children in China – no intention of working, studying or undertaking any training in Australia – decision under review remitted for reconsideration

PRACTICE AND PROCEDURE – joint hearing with daughter

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 600.211 Schedule 8 conditions 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 1 August 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 applied for the visa on 17 July 2017. 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 she was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 5 October 2017, the review applicant, who is the son of the visa applicant, applied to the Tribunal for a review of that decision.

5. The review applicant appeared before the Tribunal on 17 July 2018 to give evidence and present arguments. The hearing was conducted as a joint hearing in relation to two visa applications made by the visa applicant and her daughter, [Ms A]. The Tribunal also received oral evidence from the two visa applicants and [Mr B], a Church Minister. The Tribunal hearing was conducted with the assistance of an interpreter in the Shanghainese 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 matter should be remitted for reconsideration.

   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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa 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 son. This is a purpose for which a visa in the Tourist 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. There is no evidence before the Tribunal to indicate that the visa applicant has visited Australia previously.

11. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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.

12. In considering whether the visa applicant intends to comply with the conditions of the visa, the Tribunal discussed her financial circumstances and the proposed financial arrangements for her visit to Australia. The review applicant gave evidence that he owns a [business] and earns $80,000.00 per annum. He stated that his wife also works in the business and earns approximately $30,000.00 per annum. He stated that he owns two properties, one of which is rented, and his wife owns a property. He stated that he has savings of approximately $2,000.00 and a mortgage of approximately $100,000.00. He stated that he lives in a five bedroom house with his wife, [children] and a tenant.

13. The review applicant gave evidence that the visa applicant is over [age] years old and is in receipt of a pension of 4,000.00 rmb a month. He stated that she owns an apartment and savings but was not aware of how much she has in savings. He stated that she has no debts. He stated that she currently lives with his sister, [Ms A], as she lives in an apartment on the ground floor and she looks after her. He stated that she will pay for her airfare and he will provide her with accommodation and pay for her living expenses in Australia. He stated that, at her age, she has no intention of working, studying or undertaking any training in Australia.  

14. The visa applicant gave evidence that she receives a pension of 4,000.00 rmb a month. She stated that she has savings and is able to pay for her airfare and living expenses in Australia. She stated that the review applicant will provide her with accommodation in Australia. She stated that she is over [age] years old and has no intention of working, studying or undertaking any training in Australia. 

15. In considering whether the visa applicant intends to comply with the conditions of the visa, the Tribunal discussed the length and purpose of her proposed stay in Australia. The review applicant gave evidence that he came to Australia in 2009 and has not seen the visa applicant since then. He stated that he was granted a [permanent] visa in Australia and [has not returned to] China. He stated that he tried to obtain a visa to travel to [Country 1] so that he could see the visa applicant there but his application was refused by the [region’s] government.

16. The review applicant stated that he would like the visa applicant to come to Australia to spend time with him and his family. He stated that he would like her to come here for 3 months but would be fine even if she comes here for a week. When asked why, in his letter of invitation, he only invited her for a month if he wants her to come here for 3 months, he responded that his previous migration agent advised him that if he invited her for 1 month she was more likely to get a visa.

17. The visa applicant gave evidence that she has not seen the review applicant since 2009 and wants to see him. She stated that she would like to come to Australia for a maximum of 2 to 3 months. She stated that she would like to spend time with the review applicant and do some sightseeing.

18. The Tribunal discussed with the review applicant the incentives for the visa applicant to return to China before the end of her permitted stay in Australia. He responded that her incentives to return to China are her property and her pension. He stated that she is also entitled to free medical services. He stated that her life would not be better in Australia as she owns nothing here, does not speak English and would not be able to go out or buy anything. When asked the same question, the visa applicant responded that she has [other] children in China. She stated that she wants to see the review applicant but does not think she could adapt to living in another country. She stated that she has a diet of Chinese vegetables. She stated that she is comfortable living in Shanghai.

19. The Tribunal has considered other relevant matters. The Tribunal has had regard to the review applicant’s immigration history and whether the visa applicant is likely to follow his example. The Tribunal is satisfied that the visa applicant’s circumstances are very different to those of the review applicant at the time he came to Australia on a temporary visa and then applied for a permanent visa.

20. The Tribunal has considered the evidence given by the visa applicant’s daughter, [Ms A], and [Mr B]. The Tribunal has also considered the written submissions made by the review applicant’s migration agent.

21. The Tribunal has considered the documentary evidence before it in relation to the visa applicant’s assets and the review applicant’s assets.

22. Having considered all the evidence and submissions, the Tribunal accepts that the visa applicant wishes to come to Australia to visit the review applicant, as she has not seen him since 2009, and to do some sightseeing. The Tribunal accepts that she has the financial capacity to pay for her travel to Australia. The Tribunal accepts that the review applicant will provide her with accommodation and pay for her living expenses in Australia. The Tribunal accepts that she has no intention of working, studying or undertaking any training in Australia.

23. The Tribunal accepts that the visa applicant intends returning to China at the end of her permitted stay in Australia and that her incentives to do so outweigh her incentives to remain in Australia after the end of her permitted stay. The Tribunal is satisfied that she will comply with the conditions of this visa.

24. 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

25. 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.

    Linda Symons
    Member