Cai (Migration)

[2018] AATA 4319

Cai (Migration) [2018] AATA 4319 (7 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Huiqing Cai

VISA APPLICANT:  Ms Yanqing Cai

CASE NUMBER:  1724471

DIBP REFERENCE(S):  BCC2017/2596395

MEMBER:Linda Symons

DATE:7 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 September 2018 at 5:34pm

CATCHWORDS
MIGRATION –Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsored family stream – genuine temporary entrant – review applicant to fund trip – incentives to remain in Australia – children live with ex-husband – no significant assets in China – Tribunal has concerns that the applicant intends to work in the review applicant’s restaurant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 600.211 Schedule 8 condition 8101, 8201

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 28 August 2017 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 21 July 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 she was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 9 October 2017, the review applicant, who is the visa applicant’s sister, applied to the Tribunal for a review of this decision.

5. The review applicant appeared before the Tribunal on 20 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, the review applicant’s husband, Bing Quan Liang and the review applicant’s friend, Ross Brogden. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 visa applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the visa applicant was subject; whether the visa 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 visiting her sister and family. This is a purpose for which a visa in the Sponsored Family stream may be granted.

10. 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. There is no evidence before the Tribunal to indicate that the visa applicant has previously visited Australia.

11. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·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.

12. In considering whether the visa applicant intends to comply with conditions 8101 and 8201, the Tribunal discussed the proposed financial arrangements for her visit to Australia. The review applicant gave evidence that she and her husband own a restaurant and have done so for 7 years. She stated that they each receive an income of $70,000.00. She stated that they own two houses. Her husband, Bing Quan Liang, gave evidence that they have savings of approximately $110,000.00 and debts of approximately $900,000.00. She stated that she has a son aged 16 ½ years and a daughter aged 13 years. She stated that they live in a four bedroom house. She stated that she is able to provide the visa applicant with accommodation and is able to pay for her airfare and living expenses in Australia.

13. The review applicant gave evidence that the visa applicant is employed as an Accountant but did not know where she worked. When asked how long she had worked in her current job, she responded quite a few years. When asked what assets she owned, she responded that she thinks she has 200,000.00 rmb in savings and has no debts. She stated that she rents a room in which she lives. When asked what spending money she is going to bring with her, she responded that she does not have any plans as to where to go for pleasure. She stated that, if the visa applicant has any expenses in Australia, she will pay for it. She stated that she is not planning to work in her restaurant and has no intention of working, studying or undertaking any training in Australia.

14. The visa applicant gave evidence that she has been employed as an Accountant/Cashier at the Wing Yu Communication, Technology and Messaging Company since March 2016. When asked what assets she owned, she responded that she has 180,000.00 rmb in a term deposit and 50,000.00 rmb in another bank account. She stated that she has no debts. She stated that she will bring about 100,000 rmb with her. When asked whether she was planning to work in the review applicant’s restaurant, she stated no. She stated that she has no intention of working, studying or undertaking any training in Australia.

15. In considering whether the visa applicant intends to comply with conditions 8503 and 8531, the Tribunal discussed the length and purpose of her proposed stay in Australia. The review applicant gave evidence that the visa applicant wants to come to Australia for 3 months. She stated that she last saw her in March 2017. When asked why she wants to come to Australia, she stated that she wants to see her and look around. She stated that she wants to see her work environment and whether she lives a good life. When asked what she is going to do for 3 months, she stated that she wants her to come here and “see what sightseeing she wants to do and then decide”. When asked how she is able to get so much leave from her work, she responded that her employer promised that she could get leave and it is not a problem.

16. The visa applicant gave evidence that she would like to come to Australia for 3 months. She stated that she has worked in her current job for 2 years and is entitled to 5 days leave a year which can be accumulated. She stated that she has about 10 days of accumulated leave. When asked how she was able to get 3 months leave to come to Australia, she responded that she can apply for leave from her employer. She stated that another person in her company was given 3 months leave to travel to Australia and returned in January.   

17. The visa applicant has provided to the Department a letter dated 6 July 2017 from the Zhaoqing City Duanzhou Yongyu Information Technology Service Co Ltd which indicates that she has been employed there as a Cashier since January 2016 and is approved to take 3 months leave from 1 October 2017 to 31 December 2017 to visit her family in Australia. 

18. The visa applicant gave evidence that she last saw the review applicant in April 2017. When asked why she wants to come to Australia, she responded that she wants to see the review applicant’s living environment and do some sightseeing. When asked what she is planning to do for 3 months, she responded that she would go out and look around at the scenery. When asked what she would do whilst the review applicant and her husband are at work, she responded that she would stay home, rest and visit places nearby. 

19. The Tribunal discussed with the review applicant the incentives for the visa applicant to return to China before the end of her permitted stay in Australia. She responded that her incentives to return to China are her parents, her children and her work. When asked the same question, the visa applicant responded that she has a stable job and economic development in China in good. She stated that she has two children and when she has time she sees them.

20. The review applicant’s husband, Bing Quan Liang, gave evidence that the visa applicant wants to come to Australia to visit the review applicant.

21. The review applicant’s friend, Ross Brogden, gave evidence that the review applicant and her husband rented his house and they have now become family friends. He stated that they are excellent people and are dedicated and hard working. He stated that they are very busy people and he helps them out with their children. He stated that whenever Mr Liang needs assistance with English he helps him out. He stated that he has met the review applicant’s family.

22. The Tribunal has considered other relevant matters. The review applicant gave evidence that the visa applicant is divorced. She stated that her two children live with her ex-husband. She stated that her daughter has just completed her High School examinations. When asked whether she has contact with her children, she responded that she thinks so. She stated that she sometimes telephones them and sometimes wants to meet them.

23. Having considered all the evidence, the Tribunal has a number of concerns in relation to whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal is concerned about her proposed length of stay in Australia and what she will be doing here for 3 months. The Tribunal has concerns that she may work in the review applicant’s restaurant to help the review applicant and her husband as they are very busy. When the Tribunal raised these issues, the review applicant responded that they have a day off every Monday. When asked what the visa applicant would do on the other 6 days of the week whilst they are at work, she responded that there is a beach near their house. When the Tribunal raised its doubts that the visa applicant would spend 6 days of the week at the beach, she responded that she could join Chinese tours and do some trips. 

24. The Tribunal raised as an issue with the review applicant its concerns that the visa applicant had strong incentives to remain in Australia after the end of her permitted stay and its doubts that her children were a strong incentive for her to return to China as they live with their father. She responded that the visa applicant has a good job, wants to see her children at any time she wishes to and her parents are in China. 

25. The review applicant gave evidence that she is prepared to lodge a security bond of $20,000.00 to $30,000.00 to guarantee the visa applicant’s compliance with the conditions of the visa.

26. Having considered all the evidence, the Tribunal accepts that the review applicant will pay for the visa applicant’s airfare to Australia, her expenses in Australia and provide her with accommodation. The Tribunal accepts that the visa applicant wants to come to Australia to visit the review applicant and her family. However, the Tribunal is not convinced that this is her only purpose in coming to Australia. The Tribunal is concerned that she intends working in the review applicant’s restaurant and is not satisfied that she will comply with condition 8101. The Tribunal is not persuaded that her employment in China provides a strong incentive for her to return to China as she has only worked there as a cashier for 2 years and would be able to earn a better income in Australia.

27. The Tribunal accepts that the presence of the visa applicant’s children and parents in China are incentives for her to return to China but is not satisfied that they outweigh her incentives to remain in Australia after the end of her permitted stay. The Tribunal is not satisfied that the payment of a security bond will ensure her compliance with the conditions of the visa.  

28. 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

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

    Linda Symons
    Member