1904307 (Migration)

[2021] AATA 1798

1904307 (Migration) [2021] AATA 1798 (23 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904307

MEMBER:Rosa Gagliardi

DATE:23 April 2021

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 23 April 2021 at 3:09pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – spouse of the sponsor – previous Partner visa – stable employment in China – financial situation in China – marriage rites – separation from family – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

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 Home Affairs on 21 January 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 28 November 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 (Cth) (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.

5. The review applicant/sponsor appeared before the Tribunal by phone on 19 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant in China. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

    cl.600.211(a)

11. 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)).

12. The sponsor and her [children] live in Australia.  Her [children], the sponsor stated at hearing, are the children of the applicant and she is the spouse of the applicant.  They had been classmates and studied together.  The parties were married [in] September 2011 in NSW, Australia.

13. The sponsor explained that the applicant came on a Prospective Marriage visa (subclass 300) in 2010.  They married and then applied for a Partner visa onshore.  He was subsequently granted a subclass 820 visa, but according to the sponsor, the applicant was refused a subclass 801 and he then returned home.

14. The Tribunal has limited information before it regarding the circumstances of the refusal and whether the applicant did abide by the requirements to return to China voluntarily.  The sponsor stated that the applicant had been refused a subclass 801 visa because he had spent too much time in China.  These matters are somewhat opaque, but the Tribunal is prepared to extend the sponsor the benefit of the doubt and accepts that the applicant’s time in Australia was not marred by any breaches of his visa conditions. 

15. The parties have also been transparent about the applicant having been refused a Visitor visa on two occasions.

16. Asked why the parties, if they were serious about their relationship, had not sought to apply for an offshore Partner visa.  The sponsor stated that the applicant on being refused the first time obtained a stable job in China so he could not stay in Australia.  The sponsor stated her husband was [in a position] within [Business 1] in China.  The Tribunal asked whether the applicant considered he would not be able to easily obtain employment in the [specified] industry in Australia and the sponsor stated that she did not think he could due to the language barrier and, in any event, he had a stable career in China.  She stated that the applicant only wanted to come to Australia for about a month, to visit her, their children and grandchild.

17. Overall, the Tribunal has not identified any previous breaches of the applicant’s past visas in Australia and places positive weight on this matter.

18. The Tribunal queried how the sponsor came to Australia and she stated that initially she came on a Visitor visa, she then applied for a Protection visa.  Asked what she had feared in China, the applicant stated that she could not remember too much.  The Tribunal expressed surprise that the applicant had been in fear of her life but could not remember, even in very general terms, what her difficulties in her home country had been.  The applicant then stated that she did not consider it was necessary to tell the Tribunal about this matter. 

19. The sponsor is absolutely correct in stating that she need not tell the Tribunal anything about her Protection claims, however, the Tribunal was attempting to gauge the degree to which the sponsor herself had observed Australia’s immigration laws.  Clearly in arriving on a Visitor visa she then changed her status and the Tribunal had concerns that she might encourage the applicant to do likewise.  Ultimately, however, very little turns on this matter and the Tribunal places no adverse weight on the circumstances of the sponsor’s arrival and stay in Australia.

    cl.600.211(b)

20. 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)).

    ·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.

21. In perusing the applicant and sponsor’s marriage certificate the Tribunal noted that the rites of the marriage were listed as “Russian Orthodox and Chinese Moslem”.  The Tribunal asked about this matter and whether the notation on the marriage certificate referred to the applicant and sponsor’s religions.  The sponsor denied all knowledge of this matter and stated that neither she nor her husband had any religion.  She did not know why those rites had been referred to in the marriage certificate.  This matter has left the Tribunal somewhat uneasy and has concerns that the sponsor may not have been truthful with the Tribunal.  If the applicant is of the Russian Orthodox religion, or a Chinese Muslim then this would raise concerns about the applicant’s motives in coming to Australia.  This is because the Christian religion and Islamic religions are not well tolerated by the Chinese authorities.[1]

    [1] The Economist, 9 May 2020, “Near China’s border with Russia the Orthodox Church regains a toehold”, Near China’s border with Russia, the Orthodox Church regains a toehold | The Economist, accessed on 23 April 2021.  This article refers to the wiping out of the religion by Mao Zedong after seizing power in 1949.  Due to China’s recent rapprochement with Russia, however, the crack down on the Church appears to be easing somewhat.  The Muslim camps in China have also been highly publicised, (see China Wants the World to Stay Silent on Muslim Camps. It’s Succeeding. - The New York Times (nytimes.com)), accessed on 23 April 2021. 

22. In fairness, however, the Tribunal has to entertain that it is a possibility that the sponsor and applicant were so disinterested in religion that they did not have regard to the rites of the ceremony or that they did not care about how the ceremony was performed.  Nor can the Tribunal assume that the reference refers to the parties’ religions.  The Tribunal has little other information about the applicant’s wedding in Australia such that it would be unreasonable to place adverse weight on this matter.  At hearing the applicant stated that he had no religion and the sponsor, stated same.  The applicant is not living in Xinjiang where Muslims have been kept apart and he appears to be earning a living without difficulty.  The Tribunal is therefore prepared to accept that neither the applicant nor the sponsor, have religious affiliations that might prompt the applicant to change his status onshore.

23. It has been strongly argued that the applicant would not remain in Australia due to his financial situation in China and because of his stable employ there.  In her statement to the Department dated 21 November 2018, the sponsor stated that she missed her husband very much and wanted him to come to Australia so they could spend the Chinese New Year together.  Further, her daughter-in-law was due to give birth at that time and it would be a memorable family reunion.  She reiterated that her husband had a career in China and that he would not overstay his visa.

24. The Tribunal has sighted certification from the applicant’s company, [Business 1], dated 21 November 2018, that the applicant was granted leave to visit his family in Australia for one month and that he would continue in his current position on return to China.  Evidence has also been submitted that he is resident of Fuqing city, Fujian Province.

25. Further certification has been provided to the Tribunal from the applicant’s company, [Business 1], dated 21 November 2018, stating that the applicant had been working in the company since 2009 [in a position] and that his after tax monthly salary is $8000.  (Registration documentation for the company has been sighted by the Tribunal indicating the investment capital is worth 2 Million dollars).  In a more recent statement, however, the company has confirmed that the applicant had been working at the company since February 2019, and that he was earning RMB 8000 per month.  This is the equivalent of roughly AUD1,595.19.  The recent banking information submitted to the Tribunal would indicate that the applicant has been earning RMB8,000 per month and the Tribunal accepts this as fact.

26. The Tribunal does not place any adverse weight on the contradictory information submitted in the letters from the company as they appear to be typos and nothing more.  Nonetheless, the Tribunal is not satisfied that working in the [specified] industry in Australia would not attract more than around AUD400 per week.  The median salary for a [related occupation] in Australia is instead AUD53,625.00, for a labourer[2].  Clearly, the applicant is much more skilled and would be remunerated accordingly.  The Tribunal appreciates that the language might be a barrier to obtaining a skilled job in the [specified] industry in Australia, however, given his experience even in unskilled work, he would attract a reasonable salary.  The Tribunal is therefore not convinced that the applicant’s work in China is so well remunerated to ensure compliance with his visa conditions and that he would not be motivated to change his status onshore due to his career in China.

    [2] [Source deleted].

27. Various financial data has also been submitted, some of which has been translated and other not translated.  Nonetheless, what the Tribunal can make out is that the applicant held RMB161731.48, as at [a day in] March 2021, in one account at least.  This is the equivalent of about AUD32,243.87 in today’s currency.  This is a significant amount.  The Tribunal does note, however, that in early 2021, there are large deposits, including several of RMB100,00.00 which are clearly not the applicant’s salary.  It is difficult for the Tribunal to be satisfied, therefore, that the applicant’s earnings mean he has been able to accrue such a significant amount in savings.  The Tribunal is therefore unclear as to the source of such funds, and whether they may not be coming, for example, from family in Australia.  The applicant has more recently also submitted evidence of a deposit of RMB50,000, but the Tribunal queries the origin of such funds if he only earns RMB8,000 per month.

28. Nonetheless, while the Tribunal may place lesser weight on the savings, it certainly does not dismiss that the applicant could fund a short stay in Australia, if the Tribunal were satisfied that the applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted – and the Tribunal is not satisfied.  Given funds of this type can easily be transferred to Australia on a permanent basis, the Tribunal is not satisfied that together with his job, the applicant’s savings in China represent an incentive for him to return to his home country on expiry of his visa.  The Tribunal has also sighted registration documentation for the applicant’s vehicle, but given such assets can be disposed of easily the Tribunal is not satisfied that either of itself, or in combination with his career and savings, such an asset convinces the Tribunal that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

29. Having assessed the applicant’s material ties to his home country which the Tribunal considers tenuous, the Tribunal now turns to his affective ties.  The applicant has a spouse and children and a grandchild in Australia.  The applicant had attempted to remain in Australia previously, not unreasonably, on the basis of his marriage to the sponsor.  The sponsor at hearing stated that the reason the applicant did not reapply for a Partner visa offshore is because his stable work in China meant that he was not able to do so.  When asked how long the parties planned to be separated as spouses, the applicant stated that the sponsor might go and live with him in China.  The Tribunal has doubts about this matter, however, as while the Tribunal accepts that the sponsor visits the applicant on a regular basis, she has not, to date, indicated that she has made firm plans to live with her husband in China.  Given this is the case, the Tribunal  is left to wonder whether the parties see their future together as spouses as being in Australia, as they previously had, and whether the Visitor visa for the applicant is a means of a long-term reunion with his family. 

30. The Tribunal is not satisfied that the applicant would forego living with his family in Australia because of his work in China.  The only reason he has not been able to live with his family in Australia is because he was initially not permitted to do so by the Department of Home Affairs (via the Partner visa).  Given the applicant’s immediate family resides in Australia, the Tribunal considers that these factors outweigh any ties he might have to China by way of work and savings and other assets.

31. The Tribunal has heard the applicant’s argument that it is much more convenient for the applicant to come to Australia to see them, rather than for the famly to go to China to visit the applicant.  The Tribunal does not argue with this contention.  Nonetheless, the test is for the Tribunal to be satisfied that the applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted, and for the reasons given above, it is not satisfied.

32. The Tribunal has also considered all other relevant matters (cl 600.211(c)).   The Tribunal acknowledges that this class of visa permits the applicant/sponsor to lodge security for the visa.  Indeed, the sponsor has emphasised this matter in her letter to the Department and given the funds held between the applicant and sponsor (the Tribunal notes that the applicant works also), the Tribunal is in no doubt that they could lodge a bond.  Nonetheless, given the Tribunal is not satisfied that the applicant genuinely intends to stay in Australia temporarily because his close family members live in Australia, the Tribunal is not convinced that payment of security would incentivise the applicant to return to China.  This is particularly so as the applicant had been forced to be separated from his family previously after attempting to remain onshore on a Partner visa.

    Conclusion

33. For the above reasons, individually and holistically, 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

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

    Rosa Gagliardi
    Member