1823092 (Migration)

[2020] AATA 5152

1823092 (Migration) [2020] AATA 5152 (12 November 2020)

AppID: 1823092

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1823092

MEMBER:Hugh Sanderson

DATE:12 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 12 November 2020 at 12:39pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – incentives to remain or return – elderly parents and other adult children in home country, no evidence of employment, income or significant ties – visa applicant currently caring for review applicant’s young child in home country – credibility – review applicant’s evidence inconsistent with claims made in previous unsuccessful protection visa application – inconsistent evidence about finances – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 12 July 2018 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 19 June 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family 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 the delegate was not satisfied the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted.

   Background

5. The review applicant is a citizen of China and is currently [Age] years old. He first arrived in Australia in 2008 holding a Tourist visa. He then applied for a Protection visa which was refused by the Department and that decision was affirmed by the Tribunal (differently constituted) on review in 2009. He then remained in Australia as an unlawful noncitizen. He applied for and was granted a Partner visa in 2015. Since then, he has returned to China on six occasions. He now has the right to reside permanently in Australia.

6. The review applicant is married to [Ms A] who was born in China. She was granted a Skilled Independent visa and is an Australian citizen. They were married in [Year]. They have two sons, [Child 1] who was born in [Year] and [Child 2] who was born in [Year]. The review applicant works in [a work sector] and his wife works as [an Occupation 1]. The review applicant provided details of his and his wife’s savings.

7. The visa applicant is the mother of the review applicant. She is currently [Age] years old. She is divorced with the only family she disclosed still living in China being her parents. She did not disclose having any employment and has not travelled out of China previously. She provided details of her savings. It was claimed the visa applicant had sufficient funds to meet her expenses while in Australia, but would also be receiving support from her son.

8. The review applicant provided a letter to the Department stating that he wished to invite his mother to visit him in Australia for her birthday. He also wished her to be able to see where he was now living with his wife and to spend time with his children.

9. The delegate who considered the application noted the following:

   ·Apart from her parents the visa applicant appeared to have no other family ties in China which would provide an inducement for her to return at the end of any visit to Australia;

   ·No details were provided as to any employment or regular income of the visa applicant;

   ·The visa applicant did not appear to have any significant ties with China that would be an inducement for her to return; and

   ·The visa applicant did not have a demonstrated history of travelling overseas.

10. Taking these matters into account, the delegate was not satisfied that the visa applicant genuinely intended to remain temporarily in Australia for the purposes of her visa. The delegate found the visa applicant did not meet the criteria in cl.600.211 and refused the application.

    Information to the Tribunal

11. The review applicant provided further documents to the Tribunal including the following:

    ·The review applicant’s bank statement from the Bank of China;

    ·Evidence of the visa applicant owning an apartment in China;

    ·Evidence of the review applicant’s income in June 2020 totalling $24,652;

    ·Evidence of the review applicant’s wife’s income; and

    ·Evidence of the review applicant’s ownership of an apartment with his wife.

12. The review applicant provided a statement where he made the following claims:

    ·The visa applicant applied for the visa to enable her to spend time with the review applicant, his wife and his children in Australia;

    ·The visa applicant is busy in China caring for her elderly parents and has the responsibility for caring for them;

    ·The visa applicant has sufficient personal savings to fund her trip to Australia and also owns an apartment in China;

    ·The visa applicant has never travelled overseas previously and deserves an overseas trip to Australia;

    ·The review applicant’s mother-in-law has previously travelled to Australia on a number of occasions and complied visa is granted to her;

    ·Both the review applicant and his wife work and need the assistance of their mothers to care for their children;

    ·When the review applicant’s mother-in-law returned to China in July 2019 she took with her their son, [Child 2], so that he could be looked after by the visa applicant;

    ·In January 2020 the review applicant, his wife and their son, [Child 1], travelled to China returning in February 2020; and

    ·[Child 2] remained living in China and now with the current travel restrictions due to the COVID-19 pandemic it is difficult for him to return to Australia and it is hoped the visa applicant could accompany him to return to Australia.

13. The review applicant appeared before the Tribunal by video on 11 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by his registered migration agent who attend the hearing.

14. The Tribunal commenced the hearing by explaining to the applicant the process under s.359AA of the Act. The Tribunal explained to the applicant it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain what this information was, why it was relevant and then invite the applicant to comment on or respond to the information. If he required more time, he could request an adjournment.

15. The review applicant said that he worked as [an Occupation 2] earning about $30,000 per annum. His wife worked as [an Occupation 1] earning $60,000 per annum. He said they had savings of about $200,000. When asked how he was able to accumulate this much in savings, he said that his wife also worked selling things overseas, but did not learn much from this. He said that their parents gave him about $70-$80,000. He said that he and his wife own the home they live in with a mortgage of about $500,000. The Tribunal indicated that it was difficult to understand how he could accumulate $200,000 in savings with a household income of only $90,000 per annum and a mortgage of $500,000. The review applicant said this was the truth.

16. The review applicant said that he and his wife have no family in Australia. He said that his mother and maternal grandparents and son are currently living overseas. He said that he had not had any contact with his father since 2007 and his parents divorced in 2006. He said that it was planned for his son, [Child 2], to stay in China until the age of three because he and his wife were busy with work. He said that his mother is caring for [Child 2]. He said that his mother had never had any problems with the authorities in China and had never been arrested.

17. The review applicant said that his mother is not working and had not worked for about two years. He said that she had only worked in retail. He said that his father had worked as [an Occupation 3] but was not aware of any other work he was involved in.

18. The applicant said that he had always provided truthful information to the Department and to the Tribunal in any dealings he had with them. He said that he arrived in Australia in 2008 and then was given a Bridging visa. After some time, the applicant acknowledged that he applied for a Protection visa. He claimed he faced persecution in China. He confirmed that his mother had never been held in detention in China.

19. The Tribunal referred to the process under s.359A of the Act set out above. The Tribunal referred to the applicant’s Protection visa application. The information in that application was inconsistent with the information the applicant was now providing. This included the claim that his parents were still living together in 2008, that they operated a pig farm, that they were both arrested and held in detention by the authorities, and that he and his parents faced continuing persecution in China. This was relevant as it undermined the claims now being made by the applicant and his credibility. It indicated that the visa applicant may not genuinely intend to remain temporarily in Australia.

20. The review applicant said that he could only admit that the information he gave in the protection visa application was false. He said what he is saying now is all true. He said that he saw an agent who told him that he could stay a long time in Australia if he applied for a Protection visa and did nothing to contact the Department after doing so.

21. The review applicant’s wife gave evidence in support of the application. She said that her husband had applied for a Protection visa, but did not know any details about this. She said that the visa applicant had two brothers and two sisters who live in China.

22. The visa applicant gave evidence by telephone. She said that she was living with her parents and her grandson in an apartment she owns. She said that she had six siblings, all of whom live close to her. She said she divorced her husband over 10 years ago, but could not recall when it happened. She claimed to have no contact with her former husband.

23. The visa applicant said that she was last in paid employment about four or five years ago. She said that she had travelled to [Country] and worked as [an Occupation 4]. She said that she was able to afford the purchase of her apartment from money she had saved and also money her husband had given her. She said that she survives now on her savings and also on money her son sends her. She said that she had never given any money to her son.

24. The Tribunal asked the visa applicant why her son had travelled to Australia in 2008. She said that he wanted to live there and survive and earn money there. She said that she did not know the details as he arranged everything by himself. She said that he was a mature young man at that stage. She said that she had never been arrested and never had any problems with the authorities in China. She said that she wants to go to visit her son in Australia as they have two children and as her son and daughter-in-law need to work, they cannot look after their children.

25. The Tribunal referred to the review applicant’s Protection visa application, including the claims made by the review applicant that his parents were living together in 2008 and they had both been arrested and detained by the authorities. This appeared to be inconsistent with the information the visa applicant was now giving to the Tribunal. The visa applicant said that what her son had claimed did happen. She said that although this happened back then, she is now fine and she is telling the truth now.

26. The review applicant gave further evidence to the Tribunal. He said that he has three uncles and two aunts who live in China being the siblings of his mother. He said that they live close to where her mother lives. The Tribunal put to him that it would be possible for the siblings to care for the visa applicant’s parents as they have the same responsibility. The review applicant said that yes, it would be possible, but they have their own families to take care of.

27. The review applicant said that as his mother speaks the Fujian dialect she had difficulty communicating what she wished to say in Mandarin.

28. The Tribunal referred to the process under s.359AA of the Act. The Tribunal noted the inconsistent information provided by the visa applicant which undermined her credibility. This was relevant as it indicated she was willing to provide false information to the Tribunal to support a visa application and the Tribunal may conclude that she does not genuinely intend to remain temporarily in Australia. The review applicant said that as she is only a housewife she would always agree with what was being put to her.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. 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.

31. In the present case, the visa applicant seeks the visa for the purposes of the son you applicant, and his family in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

32. 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)).

33. The visa applicant has not previously travelled to Australia.

34. 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.600.612):

    ·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.

35. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

36. The Tribunal did not find the review applicant or the visa applicant to be credible witnesses. The review applicant claimed to have $200,000 in savings as well as owning an apartment with a mortgage of about $500,000. He claimed that he had a taxable income of about $30,000 per annum and his wife had a taxable income of about $60,000 per annum. His tax returns indicated that his income was less than this. It is difficult to understand how, with this relatively low family income, he could accumulate $200,000 in savings as well as purchase a home and service a $500,000 mortgage. The review applicant claimed that he received assistance from his and his wife’s parents, however, the visa applicant said that she was reliant upon financial support from the review applicant. This inconsistent information undermines the claims of any financial capacity for the visa applicant to be able to fund any stay in Australia.

37. During the hearing, the review applicant claimed that he had always provided truthful information to the Department and to the Tribunal. The review applicant previously applied for a Protection visa. In that application, he claimed that the Chinese authorities had taken steps to reclaim his parents’ property in 2008 and as a result they were both arrested and held in detention. This was inconsistent to the information that he had previously provided to the Tribunal which was that his parents were divorced in 2006 and he had not had any contact with his father since 2007. He claimed that his mother had never been arrested or put in detention or had any difficulties with the authorities in China.

38. When this inconsistent information was put to the applicant, he claimed that everything he had said in his Protection visa application was false. He claimed that he had been given bad advice by a migration agent and had been told to make the claims that he did so that he could live in Australia for a long time. He blamed everything he did on the bad advice he got from the migration agent, including failing to contact the Department after his Protection visa application was refused. He claimed he was young and immature, which was not how his mother described him at that time.

39. The Tribunal does not accept that the responsibility for the review applicant making false claims in relation to his Protection visa application are any other person’s responsibility than the review applicant. The Tribunal finds that he has been willing to provide false claims and information to the Department to obtain an immigration outcome he desires. This undermines the claims that he has made in relation to his mother’s application for a Visitor visa.

40. The visa applicant appears also to have been willing to change her evidence to suit what she believes is required to obtain an immigration outcome she desires. While initially stating that she had never had any difficulties with the police authorities in China and had never been detained, when the Tribunal put to her the information that was contained in her son’s Protection visa application she said that it did happen and the claims made by her son in support of the Protection visa application were all true. She claimed that there were no problems now and she is fine because it happened a long time ago.

41. The review applicant claimed that the visa applicant said this because she is “just a housewife” and that she would agree with whatever the Tribunal is put to her. The Tribunal does not accept this. There is nothing to indicate that the visa applicant is not capable of providing cogent and correct information if she should so desire. The fact that she was willing to change her evidence indicates that she is willing to make any claims that she feels will provide her an immigration outcome she desires. It undermines all claims that she has made and the evidence that she has provided to support the claim that she genuinely intends to remain temporarily in Australia.

42. It is claimed that the visa applicant is required to care for her parents and this would provide an incentive for her to return to China. The visa applicant has three brothers and two sisters who continue to live in China near the home of her parents. Although it was claimed that all these siblings of the visa applicant have families of their own so cannot take any care of the visa applicant’s parents, the Tribunal does not accept this. There is no information which would indicate that the visa applicant’s parents would not be able to be cared for by their other children or that there are other children do not have the capacity to do so. This would allow the visa applicant to remain in Australia without any concern that her parents would not be adequately cared for by her siblings. The Tribunal does not accept the fact that the visa applicant’s parents remain living in China will provide an incentive for her to return to China at the end of any trip she makes to Australia.

1. The visa applicant has been caring for the review applicant’s son, [Child 2], since he was nine months old. The review applicant travelled to China in January 2020 with his wife and other child, [Child 1], returning in February 2020, as the COVID-19 pandemic in China was becoming a serious worldwide issue. [Child 2] has remained living in China with the visa applicant. It was claimed that the review applicant and his wife planned for [Child 2] to remain living with the visa applicant until he turned about three years old when he would then return to Australia to live with his parents. It was claimed that because both parents worked, they did not have the capacity to look [Child 2]. [Child 2] is now three years old and the review applicant and his wife would like [Child 2] to be returned to Australia in the company of the visa applicant.

2. The fact that the visa applicant has been the primary carer of [Child 2] since he was nine months old would provide a significant incentive for the visa applicant to remain in Australia at the end of any Visitor visa granted to her. [Child 2] is obviously closely bonded to the visa applicant and it would be difficult for both [Child 2] and the visa applicant to suddenly be separated. The fact that the review applicant and his wife want [Child 2] to return to live with them in Australia would provide an incentive for the visa applicant to remain in Australia at the end of any visa granted to her.

3. The visa applicant claimed that she had been dependent upon her own savings and financial support provided by the review applicant to meet her expenses. The fact that the review applicant has provided financial support provides an incentive for the visa applicant to continue to reside in Australia with the review applicant at the end of any visa granted to her. Although providing evidence of claimed savings, the Tribunal places little weight on these as a true indication of any financial security the visa applicant has in China or as an incentive for her to return to China at the end of any trip to Australia.

4. The review applicant’s wife noted that her mother had travelled to Australia on a Visitor visa and there is nothing to indicate that she did not comply with that visa. Although this is true, the circumstances of the review applicant’s wife and her mother are quite different to that of the visa applicant. The Tribunal has not been provided the evidence which led to the Department being satisfied the review applicant’s wife’s mother genuinely intended to remain temporarily in Australia. As indicated above, both the review applicant and the visa applicant have been willing to provide false information to the Tribunal to obtain an immigration outcome they desired. The visa applicant is divorced and has had no contact with her husband since 2006. The fact that the visa applicant’s parents continue to reside in China does not provide an incentive for her to return to China at the end of any visit as she has multiple other siblings who would be able to care for her parents. The visa applicant has no other significant dependants who would provide an incentive for her to return to China. It is planned that the child who the visa applicant has been caring for since he was nine months old will be returned to live with his parents, both of who continue to work full time.  The financial circumstances of the visa applicant did not provide any clear or convincing indication that she would not attempt remain in Australia at the end of any visit.

5. 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

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

   Hugh Sanderson
   Member