Cai (Migration)

[2024] AATA 3835

Cai (Migration) [2024] AATA 3835 (23 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chongjiu Cai

CASE NUMBER:  2309027

HOME AFFAIRS REFERENCE(S):          BCC2023/796885

MEMBER:Paul Windsor

DATE:23 September 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 23 September 2024 at 2:02 pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – suffering from side effects of COVID-19 – has not provided any medical evidence – applicant has been in Australia continuously since January 2020 – Tribunal is not satisfised visa applicant genuinely intends to stay temporarily in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.221

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 7 June 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 12 May 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 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 they genuinely intend 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 they were not satisfied the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted. In reaching this conclusion, the delegate noted that the applicant last arrived in Australia on 16 January 2020 as the holder of a Class FA Subclass 600 visa, which ceased on 16 April 2020. The delegate noted the applicant requested an extension of stay until 4 November 2023 because his hometown has complex control measures due to a recent type A influenza wave. He indicated that, having recently contracted COVID19, he requires more time to arrange the necessary documents and communicate with his hometown departments before returning to China. The delegate indicated that they have concerns that the applicant is attempting to circumvent proper migration channels and use the Visitor visa program to maintain ongoing residence in Australia.

5. The applicant sought review of this decision on 22 June 2023. He provided the Tribunal with a copy of the delegate’s decision record.

6. The applicant appeared before the Tribunal on 23 September 2024 via MS Teams (audio only as the camera on his phone was not working) to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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 indicated in his visa application that he was seeking the visa for the purpose of arranging documents and communicating with relevant departments in his hometown before returning to China. He commented that his hometown has complex control measures due to a recent type A influenza wave and he had recently contracted COVID-19. As discussed further below, while this might be seen as a valid purpose for which a visa in the Tourist stream may be granted: cl 600.221, at the hearing the applicant indicated that he wished to remain in Australia because of his health condition for which he is being monitored by a doctor in Australia. The Tribunal notes this is not a purpose for which a visa in the Tourist stream may be granted: cl 600.221(b).

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for a valid 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)).

11. There is no evidence before the Tribunal to indicate the applicant has not complied with the conditions of the last substantive visa held, or any subsequent bridging visa.

12. 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.

13. The applicant is a 55 year old married man. He indicated in his visa application that he has twin daughters, aged 31. He stated he is self employed as a manger at Zhejiang Hengyu Bamboo & Wood Products Company in Anji county, Zhejiang province, China.

14. At the hearing, the applicant indicated he is in Australia with his wife. He said he first came to Australia in 2017 and has visited many times (more times than he can remember) since he first came to Australia. He said he came to Australia to visit his daughters who were studying in Australia. He indicated that one of his daughters returned to China in 2018 while his other daughter, while currently in China on ‘term break’, is still studying in Australia. He indicated he also has his father in China.

15. When asked how he has been managing his business in China given the amount of time he has spent in Australia since he first visited Australia in 2017 (including in the over 4 years and 8 months since he last arrived on 16 January 2020), the applicant indicated he does it in cooperation with his wife’s sister in China. Given the applicant’s age and business interests in China, the Tribunal is satisfied that he would not work or undertake study/training in Australia, in breach of conditions 8101 and 8201, if granted the visa.

16. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal discussed with the applicant that he has spent a lot of time in Australia since 2017, including the last 4 years and 8 months continuously, which is not the intended purpose of a Visitor visa. The Tribunal also observed he indicated in his visa application that he was seeking a further stay of 6 months, until 4 November 2023, but was still in Australia over 10 months later. The Tribunal asked the applicant why he had not returned to China and when he was now planning to do so. The applicant said he has not returned because he is suffering from side effects of COVID-19. When asked, he said these consist of an itchy throat, difficulty in moving his hands freely and an elevated heart rate. When asked is he has seen a doctor regarding these issues he said he has and the doctor said they could not identify any specific reasons for his symptoms. He added that his doctor said it is side-effects of COVID-19.

17. The applicant said he wants to stay in Australia until he feels better. The Tribunal observed that the applicant stated in his response to the hearing invitation, which requests that any supporting documents be submitted at least seven days before the hearing, that he ‘may provide some documents related to health concerns’, but none had been provided to the Tribunal. The applicant indicated that he did not have any documents because his doctor is not sure what is causing his symptoms but commented that his doctor asked him to keep visiting them.

18. When asked if there was anything else he wished to tell the Tribunal, the applicant said he wants the Tribunal to consider his bad health condition and that his doctor wished to keep checking him. The Tribunal asked the applicant why he could not get any necessary medical checks done in China. The applicant commented that the medical care available in China is not as good as in Australia. He added that it is also a long flight back to China so it would be better for him to wait until he is better before he catches the flight.

19. Noting the applicant made no mention of suffering side effects from COVID-19 in his visa application and has not provided any medical evidence in support of his claims to be suffering side effects of COVID-19, the Tribunal is not satisfied the applicant is suffering any serious COVID-19 related side effects. In any event, if that is the case, a subclass 600 Visitor visa in the Tourist Stream is the not the appropriate visa in such circumstances. Given the applicant has been in Australia continuously since January 2020 and could not give any time-frame within which he might feel well enough to depart Australia, the Tribunal considers the applicant is seeking to use the subclass 600 Visitor visa to establish de facto residence in Australia. Consequently, the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted.

    Conclusion

20. 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

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

    Paul Windsor
    Member