2304913 (Migration)

[2024] AATA 2833

2304913 (Migration) [2024] AATA 2833 (28 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Tiantao Zhang

CASE NUMBER:  2304913

MEMBER:Justin Meyer

DATE:28 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 28 June 2024 at 2:26pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – mental health of applicant’s daughter – daughter’s need to complete studies and be assisted – applicant’s relationship with a person in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 Home Affairs on 30 March 2023 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 5 July 2022. 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 Tourist 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 she was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purposes set out. Therefore, she was not satisfied that the applicant met the relevant criteria in clause 600.211 in Schedule 2 of the Migration Regulations.

5. The applicant appeared before the Tribunal on 11 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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.

9. In the present case, the visa applicant seeks the visa for the purposes of:

   “Due to outbreak of Omicron variant in China, most cities in Liaoning are currently locked down. Flights are extremely limited in June/July and the travel restrictions and isolation requirements are still very strict. For health and safety reasons, I also want to spend more time with my daughter (per her departmental application form).

10. This (visiting a relative) is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

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. There is no evidence of non-compliance with conditions of a previously held visa.

13. 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(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

14. There is no evidence to the Tribunal that the visa applicant might work or study in Australia, These are not a prospect I find.

15. The Tribunal had a significant discussion with the parties about the prospect of the visa applicant returning to China.

16. The visa applicant is a [age]-year-old Chinese national.

17. A written submission was made to the Tribunal on 4 June 2024 in these terms:

    We submit that based on the following grounds, the Applicant meets the criterion of Reg600.211 of the Migration Regulations 1994, that her intention to stay temporarily in Australia is genuine. Although some of the reasons for purpose of the visa application were not existing anymore, there are other grounds for the Applicant to continue her visa application for purpose of ongoing visiting.

    The Applicant firstly arrived in Australia as a student guardian visa holder, as her daughter was studying in high school in Melbourne. Before the visa was about to expire she applied for a visitor visa by the end of 2021 so that she could stay in Australia a bit longer to escape the COVID-19 pandemic haunting in China. The visitor visa only lasted 6 months until early July 2022. At that time, the pandemic was still spreading and was very serious across China, not to mention the harsh and cruel “Zero-COVID” policy and lockdown measures adopted by Chinese government authorities. Hence the Applicant applied to extend her visitor visa onshore. That was the first reason at that time for staying longer but temporarily in Australia.

    The second reason at that time for the purpose of further stay was that the Applicant’s daughter was just turning into adulthood and was in depression due to complex clinical reasons. The daughter was also in transition to a new course of higher education which would turn her life into a mess if her mother was not with her for her comfort, company and reliance. Also around the same period of time, the Applicant’s 2nd then husband [Mr A] was harassing and intimidating the Applicant and her daughter through different ways. [Mr A] is a conman and a fundamentally untrustworthy figure. The Applicant was introduced to him in late 2021 and without much knowledge, got married with him on 23 October 2021. The Applicant separated with [Mr A] [in] October 2021, only two days after marriage, by moving out of his address. The main reason for the Applicant’s intention to immediately end the relationship with [Mr A] was that he proved to be a dishonest person, and had imposed imminent threat and danger to her and her daughter’s safety.

    From the Applicant’s own source back in China, she discovered that [Mr A] is in fact a fugitive chased and wanted by Chinese police. He was involved into an economical fraud case but escaped from Criminal investigation in May 2015. Obtained information proves that [Mr A] is still listed as a wanted person by Chinese authority and is a criminal suspect on the run. The Applicant is in the process of collecting more information and is prepared to provide the information to Australian immigration department and other law enforcement authorities to dob-in [Mr A]’s illegal activities and immigration fraud. That is the first further ground to support the Applicant’s plan to stay longer but temporarily in Australia, to assist Australian authorities to complete the investigation against [Mr A].

    The second further ground now for purpose of further temporary stay is that the Applicant wants to help her daughter make a smooth recovery from her depression and anxiety symptoms so that the daughter can focus on her studies. The young girl was suicidal and had committed suicide attempts before. The daughter is also trapped in legal troubles as she was caught driving with licence suspended. The next court date is in the middle of October 2024. It is a serious matter to the family as no one has had any trouble with police or court before. Thus the Applicant decides to accompany her daughter to overcome the legal case and support the daughter with all a mother can provide.

    The Applicant presently lives with her de facto partner and her daughter. Her daily activities include doing household duties such as cooking, laundrying, cleaning and home maintenance, as well as shopping. When she becomes free in time she will go out to socialise with her friends. She also enjoys her own leisure time by reading books or watching TV programs or movies. The Applicant’s main income is from the partner.

    In summary, we submit that the Applicant is genuine temporary visitor as her purpose for staying longer is now mainly for two reasons: to assist Australian authorities to investigate [Mr A]’s suspicious criminal activities including immigration fraud, and to support her daughter to recover from mental health conditions. The Applicant expects to stay in Australia for another 6-9 months and will return to China to prepare for offshore partner visa application.

    We enclose two witness’ statements from the Applicant’s de facto partner and her daughter for your assessment.

18. The de facto partner [stated] in writing on 3 June 2024 that he lived with the visa applicant and her daughter in Melbourne. The visa applicant’s ex-partner is an unreliable person who had committed family violence on her he stated. The visa applicant’s daughter is studying. She had experienced depression and anxiety and had attempted suicide on several occasions. She needs her mother’s company. She also has legal trouble, facing court because of driving without a licence. The mother wishes to assist the daughter with this when it comes up in court. He stated that the visa applicant needed only another six to nine months in Australia, and he would sponsor her for a partner visa.

19. The daughter [stated] in writing on 3 June 2024 that she is a fulltime student, lives with her mother and her mother’s de facto partner and that her mother had been a victim of family violence at the hands of her former husband. The declarant had issues adjusting to university studies and suffered from depression and anxiety and has attempted suicide a few times. She is on the way to rehabilitation and needs her mother around for the next six to nine months. This will also help her focus on her studies. She also faces criminal offence of driving while suspended and her mother is determined to assist her. The next court date is in October 2024 and the family has engaged a lawyer for this purpose. She reiterated that her stepfather will sponsor her mother for a partner visa.

20. The evidence in the hearing was mainly consistent with these statements.

21. The visa applicant said that she had come to Australian in 2018, as her child was to study at school in Australia. She is still here with her daughter. Her daughter is now studying a bachelors course in [Discipline 1].

22. The three of them have lived together since November 2021.The visa applicant supports herself from money given by her father and some relatives. She had previous had a government job working in [specified workplace]. Her partner is a [Occupation 1].

23. Her daughter had some interruption to her studies, but she will be finished soon. She had changed courses previously. She had previously had suicidal thoughts and attempts. Under the visa applicant’s care she will be ok. She had seen Chinese doctor and then went to a western GOP who recommended a psychologist. However, she has not seen the psychologist yet.

24. Depression and anxiety were linked with problems with her former husband, her child’s father. The visa applicant said that things would work out in six to nine months. The Tribunal asked how confident she was that her daughter would be ok to which the visa applicant replied 90% sure. In the past when her daughter was agitated she needed her mother’s advice, but now she work matters out for herself.

25. Her daughter no longer has suicidal thoughts, she said. At times she processes information differently. But she is 80-90 per cent recovered.

26. Her daughter drove unlicensed because she had accumulated too many demerit points.   The applicant wanted to be at court for her daughter. I asked what would happen if the matter was delayed. The applicant said she would hire a lawyer to take care for her in court. Her daughter had never been in court.

27. The economic situation for the applicant in China was that relatives would help her. She was confident that she could get a pension based on past government work. Even at [age] she would be eligible. No unrest or conflict in China would affect her she said.

28. The applicant said she would like to submit a spouse visa once in China. Her parents were getting older.

29. I asked why she had not submitted a partner visa application while in Australia. She said the parties had talked about it and taking her parents into consideration, they decided to try it offshore.

30. She felt her daughter would be right in six to nine months to be able to live independently of her. She then said that possibly three months would be needed.

31. She has never been to countries other than Australia and China.

32. There was a bad business with her former husband, who is still in Australia. He has a criminal record in China or is wanted. She dobbed him in. She is still collecting information about him.

33. The Tribunal said it was concerning to note how long she was in Australia and how she could be viewed as a temporary entrant. She said she was temporary. She said she had been here many years and her daughter was a great student. Her daughter has depression through and she was weighing up the situation with her parents. Once her daughter can live independently then she can go back

34. The Tribunal agreed that there has been a false claim by her ex-husband that she had been working and it is not a factor in my reasoning.

    Analysis

35. To the Tribunal’s mind the plans and arrangements are not those of genuine temporary entrant. While well-intentioned it is unknown how long this family will take to be in the right situation before the applicant can return. Figures alternatively have been three, six and nine months and the reality is that that parties do not appear to know. Return is contingent on the applicant’s daughter being able to live independently, finish studies and no longer being of as much concern. This is not an easy to predict set of circumstances. While the intentions are good, the facts point more towards a non-temporary set of arrangements. The five years in Australia admittedly interrupted by the pandemic also are indicative of a non-temporary stay.

36. There are several weighty factors potentially inducing the applicant to remain- the mental health of her daughter, her daughter’s need to complete studies and be assisted, the applicant’s relationship with a person in Australia, and the need to be present for her daughter as she faces driving charges.

37. The factors inducing a return as the desire to be near again parents and peaceful circumstances in China along with attractive financial arrangements for her.

38. It seems to the Tribunal that the inducements for remaining over a non-temporary period are the greater and will likely be followed.

39. Her financial circumstances might in a limited way point towards return. The economic situation in her home country raises no concerns nor does social unrest or conflict impacting her. She has some limited personal reasons and some incentive to return to her home country.

40. The applicant's departure from Australia is to the Tribunal’s mind remains indefinite as she makes life choices on a timetable without fixed markers. The proposed duration of stay and intended activities in Australia and the long period of years in Australia further point away from this being temporary stay.

41. While the point of the trip to Australia is to visit Australia and spend time and assist her daughter (the epidemic no longer being a factor), I am unable to conclude that she is planning a temporary stay.

42. There is no evidence of any visa non-compliance from the visa applicant or indeed anyone in the family.

43. Yet, on balance the evidence before supports a proposition that the visa applicant does not genuinely intend to stay temporarily in Australia.

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

45. 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

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

    Justin Meyer
    Member