Chen (Migration)

Chen (Migration) [2022] AATA 3334 (19 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Kaixin Chen
VISA APPLICANT:  Ms Chunmei Song
REPRESENTATIVE:  Mr Minghuang Yan
CASE NUMBER:  2202587
HOME AFFAIRS REFERENCE(S):          BCC2021/2344051
MEMBER:Nathan Goetz
DATE:19 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 19 August 2022 at 4:07pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – previous visit and visa refusals – applicant did not declare other family members – previous permanent visa application – employment details – property ownership in China – credibility issues – decision under review affirmed
LEGISLATION
Family Law Act 1975
Migration Act 1958, ss 5, 65, 351, 359, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.612; r 1.12
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review applicant was represented in the review application by registered migration agent 1572947.
BACKGROUND
On 6 December 2021 the visa applicant applied for the visitor visa. The visa applicant is Ms Chunmei Song, a 54-year-old female citizen of China presently located outside of Australia.
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 visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist 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).
On 17 December 2021 the delegate refused to grant the visitor visa on the basis that the visa applicant did not satisfy cl 600.211.
On 25 February 2022 the review applicant applied to the Tribunal for review of the decision. The review applicant is Ms Kaixin Chen, who is identified as the visa applicant’s 25-year-old daughter who resides in Australia. Department records demonstrate that the review applicant is the holder of a skilled nominated visa that grants her permanent residency in Australia.
On 19 July 2022 the Tribunal wrote to the review applicant for two reasons
The first reason was to invite the review applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 9 August 2022 so she could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the review applicant to appear at a Tribunal hearing because the Tribunal was unable to decide the review application in the review applicant’s favour based on the material it had.
The second reason was to invite the review applicant under s 359(2) of the Act to provide the Tribunal with information.
On 9 August and 16 August 2022, the review applicant and visa applicant appeared at a Tribunal hearing by telephone. A telephone hearing was appropriate because the review applicant was in Victoria, the visa applicant was in China, and the Member was located in New South Wales. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Mandarin languages. The representative also attended the Tribunal hearings by telephone.
CRITERIA FOR THE VISITOR VISA
Clause 600.211 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.
The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.612):
·     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.
At the Tribunal hearing, the visa applicant told the Tribunal that she did not plan to do any work during her time in Australia, did not plan on doing any study or training during her time in Australia, did not plan to lodge any other visa applications during her time in Australia, and that she would leave Australia before any visa expired.
CONSIDERATION
The Tribunal considered all the evidence and information provided concerning the visa application and the review application.
For the sake of completeness, the Tribunal notes that despite the review applicant making clear in the review application form that she was seeking review of a decision to refuse to grant the visa applicant a visitor visa dated 17 December 2021 in Department reference BCC2021/2344051, the Tribunal was initially provided the Department file concerning a decision to refuse to grant the visa applicant a visitor visa dated 28 January 2022 in Department reference BCC2021/860707. This related to a subsequent visitor visa application made by the visa applicant.
This error was discovered during the course of the Tribunal hearing on 9 August 2022 and necessitated a postponement of the Tribunal hearing for the correct Department file to be produced to the Tribunal. The Department did so prior to the Tribunal hearing on 16 August 2022. The Tribunal has considered the contents of both Department files but there was nothing contained in the latest-in-time Department file that was of a separate concern to any concern that would have been raised by material contained in the earlier-in-time Department file. Had there been any concerns, the Tribunal would have raised those concerns for discussion at the Tribunal hearing.
The visa applicant and the claimed purpose for the visitor visa
According to the visa application form, which was completed with the assistance of Mr Jason Zhang who is a registered migration agent, the visa applicant is a female citizen of China presently residing in the Tianhe District, Guangzhou, Guandong province, China.
The reason for visiting Australia was detailed as ‘family visit.’ Concerning the details, the applicant wrote ‘I would like to visit Australia from 1 January 2022 to 25 January 2022. My child is an Australian permanent resident. I would like to apply for a visitor visa, so I can visit my child in Australia. I will comply with all visa conditions.’
She declared in the visa application form that she understood that, in the event she was granted the visitor visa, she would not be permitted to work, would not undertake any studies or training, and agreed to leave Australia on or before the expiry of the period of stay authorised by the visa.
As the period the visa applicant wanted to visit Australia had passed by the time of the Tribunal hearing, the Tribunal asked the visa applicant and review applicant when the visa applicant wished to visit Australia. The Tribunal was told the visa applicant desired to visit Australia in November 2022.
At the Tribunal hearing, the review applicant told the Tribunal that her mother does not have any problems with the authorities or any other people in China, including the review applicant’s father.
The visa applicant told the Tribunal that she did not have any problems with the authorities or any other people in China and that she would tell the review applicant if she had any problems. She said that she did not fear harm from the father of her children. The review applicant and the visa applicant both told the Tribunal that the visa applicant had no religion, is not a member of a political party in China and that the visa applicant does not engage in any activity that could be considered opposing the Chinese Communist Party.
The review applicant was asked whether she the planned to introduce her mother to any person in Australia for the purpose of forming a relationship. The review applicant said she did not. The visa applicant told the Tribunal there was no plan for her to meet a person in Australia for the purpose of forming a relationship.
The visa applicant’s migration history
The visa application form contains a declaration that the applicant has never been removed, deported or excluded from any country, nor overstayed a visa in any country (including Australia). She declared that she had never been in a country and not complied with visa conditions.
The applicant detailed in the form that she had previously held a visa to Australia and other countries. She detailed that she held ‘Australian, Japanese and Maldives visas previously, and currently hold a USA visa which is valid to 13 May 2025 and a Canadian visa which is valid until 11 November 2022.
She was asked in the form whether she had ever had a visa refused or cancelled. She indicated that she had. She had a visa application for Australia refused previously.
Department records demonstrate the following:
·     On 13 October 2011 the visa applicant was granted a tourist visa to travel to Australia, but she did not do so.
·     On 20 December 2012 the visa applicant was granted a tourist visa to travel to Australia. On 13 January 2013 the visa applicant arrived in Australia and departed on 27 February 2013. On 27 February 2013 that visa ceased.
·     On 5 March 2013, 21 May 2013, 1 July 2013, and 25 July 2013 the visa applicant applied for visitor visas to travel to Australia. Each of those applications were refused.
·     On 25 July 2013 the applicant applied for Subclass 309 Partner (Provisional) and Subclass 100 Partner visas. On 21 May 2014 a delegate refused to grant the visa applicant the visa. On 23 June 2014 an application was made to the Tribunal for review of the refusal decision by the sponsor. On 8 May 2015 the Tribunal found it had no jurisdiction to review the refusal decision because the sponsor withdrew the review application.
·     14 November 2014, 19 October 2015, 8 November 2016, and 31 October 2018 the visa applicant applied for visitor visas to travel to Australia. Each of those applications were refused.
·     On 6 December 2021 the visa applicant applied for the visitor visa that is the subject of the review application.
·     On 25 January 2022 the visa applicant applied for a visitor visa to travel to Australia which was refused on 25 February 2022.
The fact that the applicant applied for multiple visitor visas to travel to Australia which were refused by a delegate is irrelevant to whether the applicant genuinely intends to stay temporarily in Australia for the purpose of a family visit. The Tribunal acknowledges that the applicant declared that she had previously been refused visas to travel to Australia and did not try and hide this from the delegate or the Tribunal. However, the Tribunal’s assessment of the evidence concerning the visa applicant’s previous partner visa application concerned the Tribunal greatly and, for the reasons later discussed, caused the Tribunal to form a view that it should give no weight to the claims that the applicant genuinely intends to stay in Australia temporarily for the purpose of a family visit.
The visa applicant’s family
In the visa application form, the applicant was asked about ‘Non-accompanying members of the family unit.’ The question in the form was ‘Does the applicant have any members of their family unit not travelling to Australia who are not Australian citizens or Australian permanent residents?’ The applicant answered ‘No.’ The applicant detailed that she was in contact with the review applicant who resided in Australia and was a permanent resident of this country.
At first blush reading this declaration, it demonstrated that the visa applicant had no family other than the review applicant. However, in the course of the review application, it became clear that this was not the case.
In response to the Tribunal request for information under s 359(2) of the Act, the visa applicant wrote to the Tribunal and advised that she had a total of three children. She detailed these children as:
·     Daughter named Ms Kaiqi Chen, who was born on 14 December 1993 and resides in the United States of America.
·     Daughter named Kaixini Chen, who is the review applicant.
·     Son named Kairui Chen, who was born on 20 May 2003 and resides with the visa applicant in China.
At the Tribunal hearing, the Tribunal queried why two of the applicant’s children were not included in the visa application form. To the Tribunal’s way of thinking, the failure to declare the other children may have been to hide information from the delegate which may undermine the claim that the applicant genuinely intended to stay temporarily in Australia.
The review applicant told the Tribunal that she had provided the information about her siblings, but if it was not included in the visitor visa application form, this was a mistake. The representative told the Tribunal at the Tribunal hearing that he believed that the details of all children had been provided to his office, but the children may not have been included in the visa application form because the two children not declared were not ‘members of the family unit.’
The representative subsequently provided a statutory declaration made by the migration agent on 16 August 2022 who assisted in the completion of the visa application form. The declaration stated that was the reason for those two children not being included because they were over 18 years of age. Attached was a ‘Basic Information’ in Mandarin accompanied by an English translation from a certified translator that appears to be an internal form for the purpose of gathering information for the visa application.
A ‘member of the family unit’ is defined in s 5(1) of the Act to mean ‘the meaning given by the regulations made for the purposes of this definition.’ Regulation 1.12 of the Regulations provides a general rule that a person is a member of the family unit of another person if, among other things, the person is a child who has not turned 18 years of age or, who has turned 18 years of age, but had not turned 23 years of age and is dependent on the family head.
The Tribunal understands from the submission that the migration agent adopted a definitional approach to what constitutes a ‘member of the family unit’ and that is why the applicant’s two other children were not declared in that section of the form.
The Tribunal has considered that submission and is prepared to give the applicants the benefit of the doubt given the evidence that the applicants had provided details of all three children to the migration agent and the migration agent elected not to provide that detail for the reasons he provided. The Tribunal is prepared to accept this, notwithstanding that from the oral evidence presented at the Tribunal hearing, there is a suggestion that the visa applicant’s son, who lives with her, is 18 years of age and is preparing to go to University in China, is arguably still dependent on his mother and would therefore be a ‘member of the family unit.’
The Tribunal is satisfied that it cannot draw any inference against the applicant’s credibility to undermine her claim that she genuinely intends to stay temporarily in Australia because two of her children were not included in the visitor visa application form.
Australian migration history of the visa applicant’s family
The review applicant
Department records demonstrate that the review applicant is the holder of a skilled nominated visa that grants her permanent residency in Australia. She was granted this visa on 26 June 2020. This followed a period of time in Australia holding a temporary graduate visa, and two student visas. The Tribunal notes that the review applicant was included as a dependent in the visa applicant’s partner visa application of 25 July 2013.
There is nothing in the review applicant’s migration history to undermine the visa applicant’s claim that she genuinely intends to stay temporarily in Australia.
The review applicant’s eldest visa / visa applicant’s eldest daughter
Department records indicate that visa applicant’s other daughter Ms Kaiqi Chen was granted a tourist visa to travel to Australia on 20 December 2012 and arrived here holding this visa on 10 January 2013. The visitor visa ceased on 10 April 2013. On 5 April 2013 she applied for a student visa and was granted a bridging visa to regularise her migration status in Australia until her student visa application was finally determined. On 1 May 2013 a delegate refused to grant the student visa application and Ms Chen applied to the Tribunal for review of the decision. On 25 March 2014 the Tribunal affirmed the decision to refuse to grant the student visa in MRT case 1307095. On 2 July 2014 Ms Chen requested the Minister to substitute the decision of the Tribunal with a decision that was more favourable under s 351 of the Act. On 22 July 2014 the request was finalised as not being considered. On 12 September 2015 Ms Chen departed Australia which was the day her bridging visa ceased.
Although the evidence is that the review applicant’s elder sister arrived in Australia on a visitor visa and applied for a student visa that was ultimately refused, the evidence is that Ms Chen requested the Minister intervene in her case and was given a bridging visa to regularise her migration status while that request was considered. This is a course that was lawfully available to Ms Chen and the evidence is that she departed Australia at the conclusion of her bridging visa.
There is nothing in the review applicant’s elder sister’s migration history to undermine the visa applicant’s claim that she genuinely intends to stay temporarily in Australia.
The review applicant’s brother / visa applicant’s son
The review applicant’s brother was included as a dependent on the visa applicant’s partner visa application that was lodged on 25 July 2013.
There is no evidence that the review applicant’s brother has ever travelled to Australia.
There is nothing in the review applicant’s brother’s migration history to undermine the visa applicant’s claim that she genuinely intends to stay temporarily in Australia.
The visa applicant’s marital status
In the visitor visa application form, the visa applicant identifies that she is divorced. She attached a Family Law Act 1975 Divorce Order made by the Federal Circuit Court of Australia made on 14 November 2016 terminating her marriage to Wei Ye. The order demonstrates that the divorce application was made by Wei Ye. The Tribunal had requested information under s 359(2) about whether the visa applicant was currently in a relationship and the response was that the visa applicant was divorced. No evidence was provided that the visa applicant was currently in any form of relationship. If she was, that evidence would have been provided in the response to the Tribunal information request.
Department records demonstrate that the visa applicant was married to the father of her three children Yuqing Chen from 25 August 1992 until 18 March 2013. On 24 March 2013 the visa applicant married Wei Ye.
At the Tribunal hearing, both the visa applicant and review applicant said that the visa applicant had been separated from her first husband for almost 10 years. The visa applicant said that she spoke to her first husband rarely.
Concerning the visa applicant’s second husband, she identified that he was in Australia. The visa applicant said that she had applied to migrate to Australia permanently when she married her second husband, but the relationship came to an end. Her intention is to remain in China permanently. As the Tribunal understands the evidence, the visa applicant claims that once her second marriage ended, she no longer desired to live in Australia.

In response to the Tribunal’s question about when the relationship with her second husband came to an end, she said that he visited China from time to time, but they lived separately. She described having a lot of arguments in 2016 and since 2016 they rarely had contact. She told the Tribunal that she considered the relationship to be at an end from 2016 onwards.
In the delegate decision record, the delegate noted that the visa applicant provided a copy of the Divorce Order dated November 2016 but that the visa applicant declared in a visitor visa application lodged in 2018, she declared that she was married. This raised concerns to the delegate about the visa applicant’s truthfulness. Seeking to address this concern in written material provided prior to the Tribunal hearing, the visa applicant wrote that:
“I did not know that I was divorced when I lodged (the visa application) in 2018. It was until recently that I was advised by my migration agent that I had been divorced since 2016 after my visa documents were carefully examined. It seems odd but this is the truth.
I married my (second husband) in China, but our relationship ended later. We did not get divorced in China. Instead, he filed a divorce application in Australia without my knowledge and the divorce application was approved in 2016. I never thought a divorce application in Australia could be approved without the consent of both parties. While in China, both parties must sign before a divorce application can be approved.
My (second husband) did not send me the divorce order some day (I don’t remember when) after the divorce application was approved, but I never read it through and never thought it was divorce order because my English language was limited.”
The representative’s submission which accompanied this statement noted that in the present visa application the applicant had provided the correct information, and suggested it was unfair for the delegate to consider the 2018 visa application declaration that the applicant was married in light of the above explanation.
The Tribunal does not accept the proposition that it should not consider responses in previous visa applications that may suggest a person is not credible or a witness of truth. That being said, the Tribunal accepts that it is possible that a person in another country who is no longer in contact with a spouse in Australia may be the subject of a Divorce Order without their actual knowledge. This may have provided a reasonable explanation as to why the applicant declared in a previous visa application made in 2018 that she was married.
However, the Tribunal is not persuaded by the visa applicant’s explanation about this clear inconsistency in light of what she told the Tribunal about her relationship with her former second husband, and the contrast of this claimed relationship status against one of the reasons she applied for the visitor visa in 2018.
The visa applicant told the Tribunal that she considered the relationship ended in 2016. She told the Tribunal that there was rarely any contact with her second husband since 2016. Yet, Department records show that she declared that one of the reasons for her 2018 visa application was to visit her second husband in Australia. The Tribunal struggles to accept that if the applicant had no meaningful relationship with her husband since 2016, she would apply for a visitor visa to visit her second husband, among others. The visa applicant did not provide a persuasive reason for this clear contradiction when raised at the Tribunal hearing for comment. She repeated that she and her second husband had arguments and said that she did not know in 2016 that she was divorced. That did not explain why the applicant claimed she wanted to visit her husband in her visitor visa application in 2018.
It may be that the visa applicant knew she was divorced in 2016 and had no relationship with her second husband from that point but decided to claim that she was still married to her second husband and that she wanted to visit him because she thought that this would be more persuasive to the decision-maker to demonstrate she genuinely intended to visit Australia temporarily.
Alternatively, she may not have known that she was divorced in 2016 because she had no relationship with her second husband from 2016 but decided to put down that she wanted to visit her husband in Australia in the 2018 visitor visa application because she thought that this would be more persuasive to the decision-maker to demonstrate she genuinely intended to visit Australia temporarily.
In either of these cases, the fact remains that the applicant claimed in a 2018 visitor visa application that one of her purposes coming to Australia was to see her second husband with whom, on her own evidence at the Tribunal hearing, she had no relationship from 2016. The Tribunal is satisfied that the visa applicant has demonstrated a flexible approach to the truth in her previous visa applications by claiming that she wished to visit her second husband in the 2018 visa application.
The Tribunal acknowledges that the visa applicant correctly identified her marital status in the visitor visa application that is the subject of this review. However, her past behaviour troubles the Tribunal, especially in light of the other concerns the Tribunal has about the visa applicant’s credibility as detailed in this decision record.
The visa applicant’s previous partner visa application
The visa applicant applied for an offshore partner visa application on 25 July 2013. The purpose of such an application was to allow the visa applicant, and two of her children who were included in that application, namely her son and the review applicant who were under 18 years of age at the time, to migrate to Australia. The lodgement of the application demonstrated a desire to migrate to Australia permanently.
The Tribunal raised the fact that the visa applicant had previously applied to migrate to Australia through the partner visa at the Tribunal hearing, because the Tribunal reasoned that this may demonstrate that the applicant had a desire to live permanently in Australia and may do so via entry to Australia through a visitor visa. Both the visa applicant and review applicant denied this remained this case.
The delegate decision record for the visa applicant’s partner visa also raised suggestions that the visa applicant had previously engaged in dishonest conduct. For example:
“According to the relationship statements provided with this application, the parties claim that the (visa applicant’s) eldest daughter Kaiqi Chen had become friends with the sponsor online whilst she was still in China. After a certain period of contact, Kaiqi Chen and the sponsor started to like each other and started to exchange photos. The visa applicant claims that it was at this stage she decided to pretend to be her daughter and gave a call to the sponsor to find out more about her daughter’s love interest, out of concern for her daughter.
The visa applicant continued to call the sponsor and pretend to be her daughter, and it was from doing so that she claims that she eventually fell in love with the sponsor. The sponsor claims that the parties first met each other on 15 January 2013, when the visa applicant and her daughter Kaiqi Chen travelled to Australia. The visa applicant claims that she and her daughter were guests of the sponsor in his home and at this stage the sponsor still believed that it was Kaiqi Chen who had placed the calls. The visa applicant claims that she was upset because the sponsor did not know that it was actually her, who had placed the calls and not her daughter. The sponsor later found out the truth about the matter and told Kaiqi Chen that he was in love with her mother when all three of them were together. According to the visa applicant’s statement, her daughter was not surprised and was happy for them.”
Other examples of the visa applicant’s dishonesty as raised in the delegate decision record include:
“The visa applicant claims that her two sisters and mother know about the relationship, but they are against it. However, when the visa applicant’s younger sister Shaoqin Song was interviewed, she stated that she did not know the identity of the sponsor, and only knows that the applicant has married an Australian man. She stated that she only knows this information because she saw photographs of the sponsor in the visa applicant’s home. She stated that the family support the marriage and would like to meet the sponsor one day. She also mentioned that the family have never been against the marriage”
“Custody and consent checks were conducted with the visa applicant’s first husband. Prior to interview, the visa applicant provided a telephone number for him through her registered migration agent. A call was made to this number, and the person who answered was not able to speak Mandarin or Cantonese and ended the call. Later, after perusing the visa applicant’s address book, I discovered a telephone listing for the visa applicant’s first husband that was completely different…Later when the visa applicant submitted the last 3 months of call records, it was demonstrated that the visa applicant had frequent and extensive communication with that particular number….I believe that the visa applicant did not supply this number to the department when the request was made in a deliberate attempt to prevent contact by the department with the visa applicant’s first husband.”
“At interview with (the visa applicant’s first husband), he confirmed that he had not signed any documents relating to this matter…I have serious concerns about the genuineness of the original consent documents supplied to the department at the time of lodgement.”
At the Tribunal hearing, the Tribunal raised the issue of the visa applicant’s previous dishonesty, particularly noting her pretending to be her daughter in telephone calls. This demonstrated dishonesty suggested to the Tribunal that the applicant may not be a witness of truth about her claim to genuinely intend to stay temporarily in Australia. The visa applicant told the Tribunal that she regretted being dishonest pretending to be her daughter in telephone calls.
The visa applicant’s employment
In the visa application form, the applicant declared her employment as retired from February 2018. At the Tribunal hearing she described this work as working making sculptures at a large ivory factory. However, she claimed that she was still working in what she described as ‘her own job.’ She detailed that she owned an excavator which is used to dig. The work is dependent on client requests to work in particular locations. Sometimes she is paid per day or per square meter dug. She provides the equipment and employs a person to do the work. The employee is a family relative but is not her son. She described this business as going for a long time as it is a family operated business. She said that this business was inherited.
The Tribunal raised this inconsistency between her oral evidence and her written evidence for comment. It suggested to the Tribunal that the visa applicant may have fabricated this current employment because she thought having a business in China might be more persuasive to the Tribunal finding that the visa applicant had incentives to return to China and only sought to travel to Australia temporarily. In response to this concern, it was suggested that the visa applicant was detailed as ‘retired’ because of her age and the excavation business is more casual work and her own business, not working for another person. The visa applicant said she was advised that she did not need to detail this employment.
Subsequent to the Tribunal hearing, the Tribunal was provided with a WhatsApp conversation with an accompanied English translation. This was a discussion between the migration agent who completed the visa application form and the visa applicant. The conversation shows the visa applicant stating that her business was ‘just registered, I haven’t yet scanned the registration document to you. Because I have not yet received the company seal.’ The agent responded that company registration was not necessary, and the agent then advising the visa applicant to ‘just state that you’re retired.’ This document accompanied the statutory declaration made by the migration agent dated 6 August 2022 when the agent detailed that the visa applicant had provided the agent with detail of her business in China, but that the migration agent ‘decided not to declare (this) in the visa application because she was retired and the business was casually operated, and (the visa applicant) has provided sufficient funds to support her stay in Australia.’
The Tribunal has considered the explanation for the failure to detail her current employment in China in her visitor visa application form. It is of concern that the migration agent who helped complete the form would advise the visa applicant to not include her claimed current employment in the form because, in his assessment, the visa applicant had sufficient funds to support herself in Australia, or (as best the Tribunal can understand it) because her work was self-employment with her own business. The Tribunal accepts that the evidence demonstrates that the visa applicant and the migration agent had a discussion about the visa applicant’s current employment in China. However, in light of the other concerns that the Tribunal has about the visa applicant’s credibility, the Tribunal is not prepared to accept that the visa applicant has the family business she claims to operate in China. Rather, the Tribunal is satisfied that this claimed business was something that the visa applicant fabricated in order to suggest she had more incentives to return to China than she actually possesses.
The visa applicant’s incentives to return to return to China
In the visa application form, the visa applicant provided a China Construction Bank certificate of personal deposit, an Agricultural Bank of China statement, and a Bank of China bank book deposit. The visa applicant also provided what the Tribunal understands to be a title deed to property she owns in China.
Prior to the Tribunal hearing, the applicants provided an updated China Construction Bank certificate of personal deposit, an insurance policy, an updated transaction statement from the Agricultural Bank of China, an updated certificate of real estate ownership of property in China and an asset statement from Guangzhou Tiyuxi Securities Business Centre.
At the Tribunal hearing, the visa applicant described her incentives to return to China at the end of a trip to Australia as her son, her retirement pension, and the fact that she has a mother in China who is 92 years of age and visits twice a week. The visa applicant also noted her previous travel to other countries and noted that she often travelled to the United States, but always returned to China.
The Tribunal has considered whether the documents and assertions about the visa applicant’s ties to China demonstrate that she genuinely intends to stay temporarily in Australia for the purpose of a visit.
The review applicant’s offer of a security for the grant of the visitor visa
Although the visitor visa applied for is in the tourist stream, a delegate can impose a requirement for sponsorship for a grant of the visa. There is no evidence that this has been required by the delegate in the present visa application.
The review applicant identified that she is currently employed as a registered nurse at the Royal Melbourne Hospital and is capable of providing a security for $60,000 to secure the grant of her mother’s visitor visa. The review applicant told the Tribunal hearing that she understood that if her mother was granted the visitor visa and did not comply with the conditions attached to that visa, she would lose the $60,000.
Given the ultimate conclusion the Tribunal reached about whether the applicant genuinely intended to stay temporarily in Australia, it is unnecessary to consider whether the imposition of a security (in the event that one was required by the delegate) would act as an incentive for the visa applicant to comply with the visa conditions.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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))
The Tribunal accepts that the applicant complied with the conditions of the last substantive visa (which was a tourist visa) she held. This is a factor that which may go towards demonstrating that the applicant genuinely intends to stay temporarily in Australia.
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 Tribunal accepts what the visa applicant told the Tribunal, and the declarations in her visitor visa application form, are consistent with her claim that she would comply with the conditions which would attach to a visitor visa. However, given the ‘all other relevant matters’ discussed below, the Tribunal places no weight on those claims and declarations.
The Tribunal pauses here to acknowledge that the review applicant came across as truthful and honest. The Tribunal accepts that the review applicant genuinely wants her mother to visit her in Australia and is genuine in her belief that her mother will stay temporarily in Australia.
However, the Tribunal is concerned with the intentions and future actions of the visa applicant. The review applicant’s beliefs are irrelevant to the Tribunal’s assessment.
The Tribunal must also consider all other relevant matters (cl 600.211(c))
The Tribunal accepts that the visa applicant has property ties and finances in bank accounts in China. While they may operate as an incentive for the visa applicant to return to China, the presence of those particular ties does not operate to outweigh the Tribunal’s concern about the visa applicant’s credibility.
Likewise, the presence of the visa applicant’s son and elderly mother do not operate to outweigh the Tribunal’s concern about the visa applicant’s credibility. The visa applicant holding other visas to travel to other countries, and evidence of her doing so and returning to China, do not outweigh the Tribunal’s concerns about the visa applicant’s credibility.
The Tribunal also accepts that the visa applicant did not tell the Tribunal hearing anything that would suggest she is fleeing harm in China and that, once out of China, she will refuse to return there. However, given the concerns that the Tribunal has about the visa applicant’s credibility, the Tribunal gives that evidence no weight.
The Tribunal found the visa applicant to be an unimpressive witness. The visa applicant has a demonstrated flexible approach to the truth. She did not detail her claimed present employment in the visa application form. The Tribunal is satisfied that the reason that claimed employment/family business was not included was due to the fact that the visa applicant fabricated that claimed employment in the course of preparing her visitor visa application form believing it would be more persuasive to demonstrate that she would return to China.
Likewise, the visa applicant claimed in her 2018 that she wished to visit her Australian citizen second husband, despite her telling the Tribunal that she considered the relationship over in 2016. The Tribunal views this as a dishonest attempt by the visa applicant to show a genuine desire to visit Australia temporarily for a purpose that did not exist, given she and her husband were clearly separated as the visa applicant given what she told the Tribunal about the end of the relationship.

Given the other concerns that the Tribunal has about the credibility of the visa applicant, the also Tribunal finds the more likely scenario about the visa applicant’s knowledge of her 2016 divorce order to be that she knew she was divorced in 2016, but described herself as married in the 2018 nonetheless because she thought that would be more persuasive to demonstrate a desire to travel to Australia temporarily.
Additionally, the visa applicant has a demonstrated dishonestly where she pretended to be her daughter in telephone calls to her future second husband. The actions of the visa applicant in providing an incorrect telephone number for her first husband in the course of the partner visa application, and the suggestion that the visa applicant submitted consent documents for her children included in the partner visa application to migrate to Australia, when her first husband denied ever signing such a document, shows that the visa applicant is prepared to engage in dishonest conduct in order to achieve a positive migration outcome. The Tribunal is not satisfied that the visa applicant has changed her approach.
Finally, the fact that the visa applicant previously applied for a partner visa to migrate to Australia demonstrates a desire to live in Australia permanently. Given the concerns that the Tribunal has about the visa applicant’s willingness to engage in dishonest conduct in the past, the Tribunal is not satisfied that it can place any weight on the claim that this previous desire is no longer present.
CONCLUSION
For the reasons given above, the Tribunal gives no weight to the applicant’s claims that she will comply with any conditions that will attach to the visitor visa, and is not satisfied that the purpose of the applicant’s visitor visa application is to stay temporarily in Australia for the purpose of a family visit.
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

100. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Nathan Goetz
Member

[2022] AATA 3334

19 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction