2400553 (Migration) - [2025] ARTA 478

2400553 (Migration) [2025] ARTA 478 (23 January 2025)
CASE NUMBER: 2400553
MEMBER:J Meyer
DATE OF ORDER: 25 March 2025

ORDER
The Tribunal by order directs, until further order, that:
1. pursuant to section 70(1) of the Administrative Review Tribunal Act 2024:
a.          the name and any other information tending to reveal the identity of the applicant must not be published;
b.          the name and any other information tending to reveal the identity of [the sponsor] and [the visa applicant] must not be published;
c.          the information specified in paragraph [2(a) and / or 2(c)] must not be disclosed to any person other than:
i.the parties, their representatives and any other person directly involved with the preparation and conduct of a party’s case; and
ii.to the extent necessary, any person whom a party approaches for the purpose of providing evidence in relation to the proceeding; and
iii.to the extent necessary, any person that a party proposes to call as a witness; and
iv.members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties; and

................................................................................... [SGD]
Deputy President / Senior Member / General Member
Notes
1.Conduct in breach of this order is an offence and may result in imprisonment for 12 months or 60 penalty units, or both. See section 119 of the Administrative Review Tribunal Act 2024 (Act).
2.A party who is not the applicant may be removed as a party to the proceeding for not complying with an order of the Tribunal. See section 83(3) of the Act.
3.The Tribunal may dismiss an application if the applicant fails to comply with an order of the Tribunal. See section 100 of the Act.

DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2400553

Tribunal:General Member J Meyer
Place:Melbourne
Date: 23 January 2025
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 23 January 2025 at 1:34pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – previous overstaying – business Interests and employment in a third country – financial resources – relationship in a third country – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 December 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 18 December 2023. 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.
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.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because they were not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purposes set out.
The review applicant appeared by video before the Tribunal on 18 December 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Chinese (Mandarin) and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the sponsored family stream may be granted: cl 600.221 and cl 600.222.
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)). An Australian substantive visa has been held, and conditions to return were not complied with, thus there is weight against the applicant here.
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(2)):
·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.
The parties made a written submission to the Tribunal which included:
·[Bank 1] statement ([language from Country 1])
·Bank book ([in the same language])
·Deposit bank book
·Review Applicant’s Statutory declaration.
·[Country 1] Residence Card
·[Health Service 1] - Request for admission and consent
·Submission in support of application, 29 September 2024:
The subclass 600 visitor visa application was lodged on 18 December 2023 with the purpose of allowing [the visa applicant] to visit his mother and his half sister in Australia for maintaining their family bond, and travelling around Australia together to explore the country and experience Australian culture. As a permanent resident of Australia, [the sponsor], acted as the sponsor for this visa application, committed to ensuring her son’s stay would be fully supported financially and that he would return to [Country 1] at the end of his visit.
Purpose of Visit
[The] visa applicant is a Chinese citizen, who has been residing in [Country 1] since November 2016. The subclass 600 visitor visa application was lodged on 18 December 2023.
The primary purpose of his visit is to spend quality time with his mother [the sponsor], who is a permanent resident in Australia, and his half sister [name] [age] years old Australian citizen. This visit is important for maintaining their family bond, and experiencing Australian culture and exploring the country as a tourist. He has no intention of overstaying his visa or seeking to remain in Australia beyond the period granted.
Previous Travel History
[The visa applicant] has made declaration that he fully understands the conditions of the Subclass 600 Visitor Visa and he is committed to adhering to them. He intends to comply with all Australian immigration regulations. His intention is to visit Australia temporarily, fulfill the purpose of his trip, and return to [Country 1] as planned.
[The visa applicant] has adequate funds to support himself during the period of his intended stay in Australia. On 11 September 2024 he has [Country 1 currency] Yen 3,042,872 which approximate to A$31,985 Australian dollars in his personal bank account with [Bank 1] The decision references a past instance where [he] overstayed his previous student visa in Australia. He has acknowledged this and deeply regretted the oversight. However, it is important to note that this was an isolated incident, and he has since gained a greater understanding of the importance of adhering to visa conditions. He has no intention of repeating this mistake and am committed to complying with all conditions of the Subclass 600 visa. He has provided his current passport with pages of travel history since 2016 including visa labels, entry/exit stamps, which demonstrated that he has been complying with all conditions of his [Country 1] visas since 2016.
Economic Ties, Business Interests and Employment in [Country 1] [The visa applicant] does not have any family members or dependent family members in his usual country of residence [Country 1]. However he has demonstrated that he has significant economic ties, business Interests and employment in [Country 1]. He has been employed as the manager and representative of [Employer 1] in [Country 1] since 24th May 2018. The scope of the business includes a diverse business including [specified operations].
While the decision notes that limited information has been provided regarding the scope and size of the business, We have included additional documentation such as business bank statements and tax documents to clarify the significance of [the visa applicant’s] employment. His role at [Employer 1] is crucial to the operations of the company, and his continued employment is vital for both his economic stability and the success of the business. This employment represents a significant economic tie to his usual country of residence [Country 1] which he has been residing since 2016, and he has a strong incentive to return to his job after his visit to Australia. His livelihood depends on this business, and it requires his constant supervision and management.
[The sponsor] is the mother of visa applicant [named]. She is a settled Australian permanent resident. She has recently recovered from a [specified] surgery. [She] will accommodate her son for the whole duration of his stay in Australia. Though [the visa applicant] has sufficient funds to support his intended stay in Australia but [the sponsor] will also pay for his living expenses if necessary. She has provided her recent [Bank 2] statement of balance A$20,679.03 issued on 04 August 2024. She also declares in Form 1149 Application for sponsorship for sponsored family visitors that she will arrange for the lodgment of a security bond for her son she has sponsored if requested to do so.
We attach the following supporting documents for your consideration:
1. A declaration from [the visa applicant] that he fully understands the conditions of the Subclass 600 Visitor Visa and he is committed to adhering to them.
2. Personal bank statements of last 3 months till the date 11 September 2024 demonstrating financial stability of [the visa applicant] in Original language [of Country 1]
3. Personal bank statements of last 3 months till the date 11 September 2024 in English translation.
4. [Employer 1] business bank statements of last 4 months till the date 09 September 2024 in Original language [of Country 1]
5. [Employer 1] business bank statements of last 4 months till the date 09 September 2024 in English translation
6. Personal tax document in July 2024 including English translation of [the visa applicant]
7. [Employer 1] tax document in July 2024 including English translation
8. Current business visa of [the visa applicant]
9. Recent medical admission document of sponsor [named]
Accordingly, we submit that [the visa applicant] satisfies the criteria for genuine intention to stay temporarily in Australia. [He] has been sponsored by his mother [the sponsor] who is settled Australian permanent resident. Accordingly, we submit that [the visa applicant] satisfies the criteria for the grant of a subclass 600 Visitor visa.
The Tribunal had a significant discussion with the witnesses about the prospect of the visa applicant returning to [Country 1].
Evidence in the hearing
The review applicant (sponsor)
The review applicant (sponsor) was born in China, is aged [age] and came to Australia under a partner visa. Her son, the visa applicant, is aged [age]. He is a Chinese national and resides in [Country 1] where he has a business.
The visa applicant had originally been in Australia in 2007 and he overstayed his visa. His parents were in a bad relationship at the time and he suffered as a result. He overstayed for years. He eventually departed Australia in 2015. The review applicant sponsor said that because of the mistake that he made he had been unable able to see her. She said that her son was young at the time but now that he has grown up.
I pointed out that the review applicant (sponsor) must have known that her son was staying on unlawfully. She said that she did not know and was not aware it would affect their situation. She said that this too was a mistake. I pointed out that one cannot simply go to another country and live there unlawfully. The review applicant sponsor said she would pledge to make sure that the visa conditions were met. She would guarantee it.
I asked why her son eventually decided to leave Australia and she said that he had been studying and just told her that he wanted to leave Australia. He was not working at the time, except that between the ages of [specified ages] he would just do some casual work a few hours a week.
The review applicant (sponsor) said that her family was not wealthy and did not have the capacity to support her son long-term. Eventually her son went back to China. He was not sure if he had contact with his father at that time. He only had occasional contact with his father. Her former husband was a farmer and her son had done some small amounts of tending to the farm.
Eventually her son ended up in [Country 1] in 2016 doing [specified] work. He was earning a reasonable annual income of the equivalent of AU$200,000 as revenue in his business. In [Country 1] her son has a girlfriend but has no family yet. He can speak basic [Country 1 language]. The incentive to return to [Country 1] was that he was running his own company would definitely go back. He also has a girlfriend, but it is a relationship that is around two months old. They are in a ‘passionate’ stage of love. The review applicant (sponsor) does not know the name of the girlfriend.
I asked what assets the visa applicant had. In China he has a house which is a family home, and he is not officially on the deed. In [Country 1] he is renting.
The review applicant (sponsor) said her son has a current visa in [Country 1]. This was renewed in September 2024.
I asked how long the trip to Australia was planned to be. She said it would be one to two months, depending on whether someone could look after the visa applicant’s business while he was away. Her son will pay for his own airfare. She repeated that her son had a career in [Country 1].
I asked the review applicant (sponsor) whether she followed any particular religion. She said she did not really have a particular faith. I asked if she was sure about that to which she replied that she was. I asked if the review applicant (sponsor) had ever made a protection visa application. She said it was such a long time ago she did not remember. It was put to her that this information was not credible because records show that she had submitted a protection visa application based on persecution being faced in China as a Christian. The review applicant (sponsor) said that her memory was not good. She said that she had misunderstood the word faith. She had applied for a visa based on church involvement. She had never intended to deceive anyone. She apologised. She said she had not been mentally very well - she had misunderstood the word ‘faith’. I asked the review applicant (sponsor) she could now recall claims under the protection application. She said her health was not good and she had just had surgery. She said that she would ensure that her son would go back upon the expiration of his visitor visa.
The visa applicant gave evidence by telephone from [Country 1]. He said that his mother was not well educated and had a hard life. Her health is deteriorating. She had a [specified operation]. Her health is in decline, and she is in her [age range] having worked hard in life. Her mother works as [an occupation 1] for a few days a week and is very tired.
The visa applicant said that he was running a company in [Country 1] for [specified work] in the [Industry 1]. They employed casual workers in [Country 1]. He said that he was the boss and received AUD3,500 per month equivalent. His annual income was JPY20m which is roughly the equivalent of AU$205,000. There is also a bonus of AUD80,000 equivalent. This is paid to himself. He would not give this career away and leave the country permanently.
He discussed his behaviour when he was young and said he understood nothing at the time. He was a burden to his family. I asked why he remained in Australia so long without a visa. He said he was very young - around about [age range] years old. He was not well off but was spoilt. He never experienced any hardship, and he did not know any better. If anything happened to him, he would have his mother to fall back on. His parents had had a hard life. In 2015 his father’s health became an issue so he went back to take care of him. His parents were divorced. He told none of this to his mother because she could not help. She only helped look after his father and he did not tell his mother about it.
I asked what other incentives there with him to return to China or [Country 1]. The visa applicant said he has been dating his girlfriend. They plan to marry next year. His girlfriend has a Chinese background. There is a plan for the parties to meet each other’s parents in China. He said that his girlfriend speaks [the language of Country 1] and has a permanent residency visa in [Country 1]. His own [Country 1 language] is ‘okay’. His mother does not know his girlfriend’s name because the relationship is recent. His girlfriend is shy and introverted. She will talk to her family first and then she will talk to his parents.
I asked if his girlfriend was with him in the room. The visa applicant said that she was working. However, he arranged for his girlfriend to speak by telephone with the Tribunal. Her name is [Ms A] and her date of birth was stated as [date]. She confirmed the couple are planning to get married. She holds permanent residency in [Country 1], and they plan to live there. She confirmed the business of her boyfriend and that he was working in [Industry 1]. He cannot be away a long time because he needs to work, and he needs to briefly visit his mother who he is missing. He is very busy at work. The parties see each other around three times per week.
Evaluation and findings
From the oral evidence of the parties and the written submissions there is no evidence that persuades me that the visa applicant will work in Australia, engage in study or training in Australia, seek a substantive visa, or remain in Australia after the end of the permitted stay.
Having examined the parties personally I find that on balance the visa applicant has various incentives to return and is a person who would be a temporary entrant to Australia.

I do not discern a desire to migrate to Australia based on his home being in [Country 1], having an apparently stable life where he is in a mutually supportive relationship with plans of marriage. The visa applicant has an apparent interest in his work and desire to build up a business. Banking details are commensurate with his claims about his work and earnings.
The visa applicant’s girlfriend provided consistent corroborative evidence that was spontaneously and possibly unexpectedly given over the telephone at short notice.
He has personal reasons and incentive to return to her home country including his relationship.
The purpose of an applicant's visit to Australia is credible, including the proposed duration of stay and intended activities in Australia. The duration is understandable given the circumstances. The review applicant (sponsor) is able to accommodate him for the trip and has the finances to do so.
I accept that the intention of the trip to Australia is to visit Australian family.
There is evidence of visa non-compliance from the visa applicant in the past although it is more than a decade ago. While unacceptable, the Tribunal notes that the visa applicant was young and inexperienced at the time and made a poor life choice. While past behaviour can be a good predictor of future behaviour, in this case there are factors for him that would encourage his prompt return to [Country 1]. In particular, there is his relationship which appears to be serious, and his incentive of time and money in an apparently successful business. Not returning within the stipulated period would be against his own interests of wanting to marry soon and continue to succeed financially.
His mother’s apparently tenuous grasp of her previous protection claims and the unlikelihood of them being genuine does concern the Tribunal but the Tribunal bears in mind that the sponsor and her son are not one and the same person. The credibility issues of one family member does not necessarily lead to a lack of credibility on the part of another.
There is no evidence of a desire for any other visa, work or study in Australia or a lack of interest in being present in [Country 1] (or China). There is a reasonable basis for finding the visa applicant would comply with the conditions stipulated above.
There is no persuasive evidence before me to support a contention that the visa applicant will not genuinely intend to stay temporarily in Australia.
The Tribunal has also considered all other relevant matters (cl 600.211(c)). [Country 1] incomes are comparable to a degree with average incomes in Australia, and it is not apparent that this is a motivator for this visa applicant.
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
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.
Representative for the Applicant: Ms Hong Li (MARN: 0850799)
Date of hearing: 18 December 2024