1826005 (Migration)

[2020] AATA 4856

1826005 (Migration) [2020] AATA 4856 (12 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826005

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 1:17pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream –genuine temporary entrant – incentives to remain or return – one other family member in Australia, all other family members in home country – work, savings and investments, including real estate in Australia – credibility – review applicant’s evidence inconsistent with claims in previous unsuccessful protection visa application – visa applicant pretended to be employer when department called to verify employment – 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 23 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 May 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.

   Background

5. The review applicant was born in and is a citizen of China. She first entered Australia [in] October 2007 holding a Subclass 571 Student visa. She was granted a further Student visa which expired on 15 March 2011. She then remained in Australia as an unlawful noncitizen. She applied for a Protection visa on 30 January 2013 based on her claims that her family belonged to the local church and her father and grandfather were elders of the church. She claimed that she and her family faced persecution in China.

6. The Department refused the review applicant’s application for a Protection visa. This decision was affirmed by the Tribunal (differently constituted) on review. An appeal by the applicant to the Federal Circuit Court was dismissed.

7. The applicant then applied for and was granted a Partner visa. Since being granted the Subclass 801 Partner (Residence) visa in August 2016 she has travelled overseas on seven occasions.

8. The visa applicant is a citizen of China and is currently 57 years old. In his application he stated that he planned to stay in Australia from 25 June 2018 to 26 August 2018. He claimed the visit was to be able to see his daughter’s new apartment. He stated that his wife and two children, aged in their late 20s, would be remaining in China whilst he visited Australia. It was claimed that the visa applicant was working in [a Workplace 1] of his hometown as [an Occupation 1].

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

   ·A check of the visa applicant’s employment raised serious concerns being:

   oThe person who answered the phone claimed to be the [person in charge] of the [Workplace 1];

   oWhen asked about the visa applicant’s employment, the response was evasive, initially stating that he had worked at the [Workplace 1] since 1995 and then changing that to say that it was from 2015;

   oThe person said that the [person in charge] had approved the leave, but then changed his statement to say that he had approved the leave; and

   oThe information provided did not support a finding that the visa applicant was employed as claimed;

   ·There was no evidence of any other significant ties to China that would induce the visa applicant to return at the end of any visa granted to him;

   ·The credibility of the information that had been provided was called into question; and

   ·The visa applicant did not have any history of compliance with any visa granted to him.

10. Taking these matters into account, the delegate was not satisfied that the applicant would comply with the visa conditions and apart Australia within the time of any Visitor visa granted to him. The delegate found the applicant did not meet the criteria in cl.600.211 and refused the application.

    Information to the Tribunal

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

    ·Further letter from [A] dated 26 October 2020 stating that the visa applicant works as [an Occupation 1] in their [Workplace 1] and has done so since September 2015;

    ·Household registration of the visa applicant;

    ·Social insurance card of the visa applicant;

    ·Bank statement of the visa applicant (in Chinese) showing his salary deposited;

    ·Property settlement payment notice (in Chinese); and

    ·Both certificate and marriage certificate of the visa applicant.

12. The review applicant’s agent provided submissions where the following was claimed:

    ·The visa applicant has significant responsibilities in China to look after his elderly mother, wife and children;

    ·The visa applicant has been working as [an Occupation 1] at a [Workplace 1] since September 2015;

    ·The visa applicant has savings equivalent to about AU$46,000;

    ·The visa applicant is in the process of purchasing property which requires attendance in China;

    ·There is nothing adverse in the visa applicant’s travel history;

    ·There is no information which would suggest anything adverse about the credibility of the visa applicant;

    ·The visa applicant’s request to visit his daughter in China is a legitimate purpose; and

    ·There is no evidence that the visa applicant suffers persecution in China.

13. The review applicant appeared before the Tribunal by video on 11 November 2020 to give evidence and present arguments. The Tribunal also received evidence from 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 her registered migration agent who attended the hearing.

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

15. The review applicant said that she was living with her [Age]-year-old daughter in an apartment she had purchased with the assistance of the visa applicant. She said she had separated from her former partner in 2019. She was not receiving any income or financial assistance from her daughter’s father. She said that she received a government payment and was dependent upon her savings. She said that she had about $150,000 in savings after her father gave her $300,000 to buy the apartment and a further $100,000 in 2020.

16. The review applicant said that she had no other family members living in Australia. She said that her parents and younger brother and sister continue to live in China. She said that her father’s mother lives with her parents. She said that her father has two older sisters who live in China and one brother who lives in Australia. She believed he came on a skilled migrant visa sponsored by his employer and works as [an Occupation 2] in a [Workplace 2].

17. The review applicant said that her father was working as [an Occupation 1] in a [Workplace 1] and had done so since 2015. Prior to this he owned his own business [providing a service]. She said that her father had never had any problems with the police and had never been arrested or held in detention for any reason. She said that her father had never been involved in any church group. She said that in all her dealings with the Department and with the Tribunal she had never provided false or misleading information.

18. The review applicant said that she came to Australia in October 2007 as a student, but her student visa expired in 2011. She said that her father was having money problems with his business and could not support her. She said she wanted to stay in Australia and friends and a migration agent told her to apply for a Protection visa in 2013. She said that she suffered persecution and that friends told her that she could get a visa saying she was with the church group. She said the migration agent gave her the information to put in the application.

19. The Tribunal referred to the process under s.359AA of the Act referred to above. The Tribunal referred to her Protection visa application claims where she claimed that all her family were members of the Local Church and that her father was an elder of the church. She claimed that there were church meetings at her family’s home and that her mother and father had been arrested and her father sent to a labour camp for six months. All this information was inconsistent with the claims now being made by the review applicant and that this may lead the Tribunal to conclude that she was not a truthful witness. The Tribunal may conclude that the evidence provided by the review applicant and visa applicant should not be believed and that the claims made that the visa applicant genuinely intends to remain temporarily in Australia are not credible. Alternatively, this could indicate that the visa applicant does face persecution in China and that he does not genuinely intend to remain temporarily in Australia.

20. The review applicant responded by saying that she was sorry for providing false information. She said that she just relied upon the agent who said that she could apply for a Protection visa. She said that her parents knew nothing about the Protection visa application she said that although her evidence had changed, all the documents provided in support of the current application were true, including the work references, despite the Department finding they were bogus based on a telephone call made to the number provided for the [person in charge of Workplace 1].

21. The visa applicant gave evidence by telephone. He said that he was currently living with his mother, wife and two daughters. He said that he had worked as [an Occupation 1] at a [Workplace 1] since September 2015. He said that he had various investments which allowed him to accumulate over 2 million RMB. He said that he gave his daughter $300,000 to purchase an apartment and a further $100,000. He said that he also invested in his nephew’s business.

22. The visa applicant said that he had never been in trouble with the law and had never been arrested or held in detention. He said that when his daughter came to Australia to study, he was busy and so he did not have much contact with her and did not know what she did. The Tribunal noted the review applicant applied for a Protection visa based on her being a member of the Local Church and that she claimed that the visa applicant had been arrested and held in detention for six months. The visa applicant said that his wife believed in Christianity and the review applicant’s claims about him were all true.

23. The visa applicant said that he wants to be able to travel to Australia to visit his daughter. He said that he would only be able to take one month off work and that was all the time he would stay in Australia. The Tribunal noted that the Department had concluded he had provided bogus information as to his employment. He said that all the information he has provided was true.

24. The Tribunal raised with the review applicant the inconsistencies in her and her father’s evidence. It was noted her father was now claiming that the claims made by the review applicant in her Protection visa application were true. This was inconsistent to the information he had previously provided that he had never been arrested or held in detention and her evidence which was that her claims were not true. This tended to support the finding that the visa applicant would be willing to provide false information in support of his application. This supported the finding by the Department that his work references were bogus.

25. The review applicant said that she admitted that when the Department tried to contact the [person in charge] of the [Workplace 1] that they did not speak to the [person in charge] but to the visa applicant. She said that because the Department only wanted the land line and not a mobile phone number for the [person in charge], the [person in charge] was not at [Workplace 1] when they called due to holidays and a typhoon. She claimed that the visa applicant answered the phone and pretended he was the [person in charge] and he provided the answers to the Department’s questions. The inconsistencies and the evasiveness in the answers was due to the fact that the visa applicant was nervous when he did this.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. 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.

28. In the present case, the visa applicant seeks the visa for the purposes of visiting his daughter in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

29. 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)).

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)). 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.

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

32. The Tribunal did not find the visa applicant or the review applicant credible witnesses. During the hearing, the review applicant claimed that she had never provided false or misleading information to the Department or to the Tribunal at any time. This is not true. The review applicant applied for a Protection visa where she claimed that her family members were associated with the Local Church and her father was an elder of the church. She claimed that her father and mother had been arrested and her father had been detained for six months. She now states that the claims she made in respect of the Protection visa application are not true. She claimed that she was advised by friends and a migration agent to make the claims to be able to remain in Australia.

33. The Tribunal does not accept that the review applicant shows any remorse or guilt in relation to making these false claims in relation to the Protection visa application. Although she claimed she was sorry for making the claims, the Tribunal finds the only sorrow she has is that she has been exposed as providing false information and the consequences of that.

34. The review applicant blamed her friends and a migration agent for having made the claims. Again, this indicates the review applicant does not take any responsibility for the false information she has previously provided to the Department and to the Tribunal and to the Federal Circuit Court on appeal. The Tribunal finds the review applicant by making the Protection visa application was aware that there was no merit in the application and she made the false claims in order to obtain an immigration outcome she desired without any consideration for the truth. She is willing to provide false information to the Department and to the Tribunal to obtain an immigration outcome she desires.

35. The visa applicant also provided inconsistent information about the claims that he and his family had been members of the Local Church. He initially stated that his wife had been involved in the church to some extent, but he had not been involved at all. He stated that he had never been arrested and never held in detention by the Chinese authorities. When details of the review applicant’s Protection visa application were put to him he claimed that all the claims she made about him were true. He claimed that he had suffered persecution in China. As the review applicant had already acknowledged that her claims had no basis in truth, the fact that the visa applicant was now claiming that all the events she had alleged did occur indicates that he is willing to provide false information to the Tribunal in order to obtain an immigration outcome he desired.

36. The visa applicant provided documents claiming that he was employed as [an Occupation 1] for a [Workplace 1]. When an officer from the Department attempted to contact the [person in charge] for the [Workplace 1] the person who claimed they were the [person in charge] provided inconsistent information and were evasive in their answers. The review applicant acknowledged during the hearing that when the Departmental officer believed they were speaking to the [person in charge] of the [Workplace 1] where the visa applicant claimed to work, they were, in fact, speaking to the visa applicant who was pretending to be the [person in charge] and his employer.

37. Again, this undermines the credibility of the visa applicant and indicates that he is willing to provide false information and attempt to deceive the Department in order to obtain an immigration outcome he desired. Although the review applicant’s agent in their submissions claims that “there is no evidence to suggest anything adverse about the credibility of the visa applicant” the Tribunal does not accept this. As set out above, both the visa applicant and the review applicant had been willing to provide false information to the Department and to the Tribunal in order to obtain an immigration outcome they desired. This undermines the credibility of both the visa applicant and the review applicant and undermines the claims that the visa applicant genuinely intends to remain temporarily in Australia for the purpose for which the visa is granted.

1. As indicated above, the Tribunal does not find the visa applicant all the review applicant credible witnesses. This calls into question whether the documents that have been provided in support of the application as to the visa applicant’s employment, savings records, and ownership of property are genuine. As stated in the Department’s decision, a copy of which the review applicant provided to the Tribunal, the Department found that the work reference was bogus.

2. The parties claimed that the visa applicant had made a substantial investment with his daughter in real estate in Australia, providing $300,000 when she purchased the property and having provided a further $100,000 since then. Based on the claimed income of the visa applicant and the claim that his [business] failed in 2013, it is difficult to understand how the visa applicant would have accumulated these savings. The fact that he has invested $400,000 with his daughter in Australia indicates a significant financial investment, well in excess of any investment he has made with his family in China.

3. The visa applicant’s mother continues to reside in China. She requires care due to her age. Although the visa applicant’s mother is currently living with him, the visa applicant has two sisters who continue to live in China and would be able to provide her care if needed. The fact that the visa applicant’s mother continues to reside in China is not an incentive for him to return to China if he entered Australia on a Visitor visa.

4. The Tribunal has significant concerns the visa applicant may attempt to obtain employment in Australia and provide financial assistance to his family in China. As indicated above, the visa applicant pretended to be the [person in charge] of his alleged employer which undermines the claims that he is in any employment at this time. The business he had [providing a service] failed. There would be significant incentive for the visa applicant to remain in Australia and work, even if his wife and two other children remained living in China.

5. In all the circumstances, the Tribunal is not satisfied that the visa applicant genuinely intends to remain temporarily in Australia for the purpose for which the visa is granted. This conclusion is based on the fact that both the visa applicant and review applicant had been willing to provide false information to support the visa application, the questions as to the credibility of the documents provided in support of the application, the incentive for the visa applicant to work and live in Australia, and the adverse immigration history of the review applicant. Although the visa applicant has never travelled out of China and therefore does not have any adverse immigration history himself, the Tribunal is not satisfied that he was not aware that the review applicant remained living in Australia as an unlawful noncitizen and made claims for a Protection visa which had no merit. Further, the visa applicant was willing to repeat the claims the review applicant made in her Protection visa application if he felt it was an advantage to him or the review applicant even knowing those claims were false. The Tribunal finds that if the visa applicant entered Australia he would attempt to remain in Australia for as long as possible beyond the term of any Visitor visa granted and for purposes not associated with any Visitor visa.

6. 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

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

   Hugh Sanderson
   Member