Chen (Migration)

[2024] AATA 291

Chen (Migration) [2024] AATA 291 (16 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Xuanping Chen

VISA APPLICANT:  Ms Xinian Chen

CASE NUMBER:  2301838

HOME AFFAIRS REFERENCE(S):          BCC2023/488387

MEMBER:Tania Flood

DATE:16 February 2024

PLACE OF DECISION:  Sydney

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 16 February 2024 at 12:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – family visit – genuine temporary entrant – incentives to depart or remain – visa and review applicants and parents all permanent residents of third country – visa applicant’s stable employment with possibility of promotion, and relationship – review applicant helping husband’s business – parents hold Australian contributory parent visa and are considering options – previous compliant travel – credible oral and documentary evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, conditions 8101, 8201, 8503, 8531

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 13 February 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 29 January 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 the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The visa was refused on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that she genuinely intends to stay temporarily in Australia.  

5. The review applicant appeared before the Tribunal on 16 February 2024 by telephone to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone.  

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   APPLICATION FOR THE VISITOR VISA

7. According to information contained in the application for the visa the visa applicant is a thirty-one-year-old single, Chinese national who is a permanent resident of the Philippines.  She stated she has a permanent resident visa issued by the Philippine government which is valid until September 2023.  She notes that her parents are currently living in the Philippines and her sister, the review applicant, lives in Sydney and Manila.  She indicates that she would like to accompany her Australian citizen sister and travel to Australia frequently.  She requested a Visitor visa for up to 12 months.

8. The visa applicant provided a completed Form 54 – Family Completion providing details of her immediate family members.  Also attached is a copy of an identity card indicating the visa applicant held a Special Resident Retiree’s Visa valid until September 2023 and a copy of her People’s Republic of China passport valid until 18 February 2029.  A copy of a bank statement of the review applicant is also attached.

   Information provided to the Tribunal

9. The following documentation has been received by the Tribunal:

   -Flight itinerary Manila Sydney return for travel in April 2023.

   -A letter addressed to the visa applicant confirming permanent appointment to the position of Accounting Assistant to the General Manager of IGMWQ Management Team Manila starting 1 February 2023.

   -A letter from the visa applicant explaining that when she applied for the visa she was in the process of changing job and failed to update the Department about her new position with IGMWQ an import and export company.  She advised that previously she was a personal assistant to the Vice President of Satizz Food Distributor for more than 5 years.   She states that she commenced her new position on 1 February 2023 but her manager approved holiday leave from April 5 to 12, 2023.

   -Certificate of Bank Deposit and/or Placement, BDO Unibank in the Philippines.

   -Copy of the review applicant’s Australian passport.

   -Contributory Parent (Temporary) (subclass 173) visa grants (dated 6 December 2022) for the review applicant’s parents for 2-year stay.

   -Updated Certificate of Employment issued on 6 February 2024 by IGMWQ Import and Export Company.

   -An email from the review applicant dated 8 February 2024 indicating that the whole family intends to travel to Sydney together to explore the city.

   TRIBUNAL HEARING

10. The Tribunal interviewed the review and visa applicants by telephone as they are both permanently situated in the Philippines.  Their testimony is as follows:

11. The review and visa applicants and their parents are residing permanently in Manila, Philippines.  The review applicant is an Australian citizen and married to a Philippine national who holds Australian permanent residency.  They return to Australia once a year.   The parents are long term permanent residents of the Philippines and the visa applicant is also a permanent resident of the Philippines.  She recently renewed her permanent resident visa for a further two years and it is valid until 2025.  The parents hold Australian contributory parent visas which are valid for two years and they will use this time to decide if they want to reside in Australia permanently.  At present the review applicant is not intending on residing permanently in Australia as she is settled in the Philippines for now and helping her husband run a restaurant business.  The visa applicant is in a relationship with a Philippine permanent resident and they are planning their engagement for around June 2024.  They have no intention of seeking permanent residency in Australia.

12. The visa applicant resides with her parents in Manila and is employed as an accounting assistant with IGMWQ import and export company.  She anticipates being trained and advanced to the role of account manager. 

13. The visa applicant hopes to travel to Australia with her sister and parents for about one week in September 2024.  The trip is being planned for tourist purposes and for the applicant’s parents to begin to decide if they want to reside in Australia permanently.    The visa applicant does not think her boyfriend would join the trip because they will likely travel after their engagement and he will not have any more annual leave.   The visa applicant is in a position to fund her own travel to Australia.

    Information received after the hearing

14. After the hearing the visa applicant provided the Tribunal with a copy of her renewed Philippine Special Resident Retiree’s Visa which is valid until September 2025.  She also provided the Tribunal with copies of three payslips dated 30 November 2023, 31 December 2023 and 31 January 2024 issued by IGMWQ Import and Export Company. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. In the present case, the visa applicant seeks the visa for the purposes of undertaking a family visit with an Australian citizen.  This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

17. 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)).

18. The review applicant first entered Australia in 2006 holding a Student visa.  She ultimately concluded her studies and was granted a permanent Skilled Independent Visa (VB 885) in March 2010.  She is now an Australian citizen. 

19. The visa applicant first came to Australia in 2010 holding a Visitor visa.  She complied with the terms of that visa and was granted a second Visitor visa in February 2012.  She entered and departed Australia in compliance with the conditions of the visa.  In July 2013 she was granted a Student visa and in 2015 she was granted a Temporary Graduate visa (VC 484).  She departed Australia prior to the visa ceasing and has not returned since 2016.

20. There is no evidence of non-compliance with visa conditions by either party.  Additionally, the applicant’s parents have been travelling to Australia since 2006 and 2010 respectively and now hold Contributory Parent (Temporary) Visas (subclass 173) which are valid for two years.

21. 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.

22. The Tribunal found the applicants to be credible witnesses and key aspects of their oral testimony is supported by credible documentation provided before and after the hearing.  The Tribunal accepts the applicants and their parents are residing permanently in the Philippines and that the reason the visa applicant is seeking a Visitor visa is to join her sister and parents on a short visit to Australia.  As noted the applicant’s parents hold Contributory Parent (Temporary) visas and the Tribunal accepts they are still considering whether to exercise the opportunity to reside in Australia permanently.  However, the Tribunal is satisfied that the review applicant has no immediate plans to reside permanently in Australia and there is no information before the Tribunal to indicate that the visa applicant has any such intentions now or into the future.  The Tribunal accepts she is permanently employed and is seeking to advance her career with her current employer and that she is planning her engagement to a Philippine national and intends to continue residing in the Philippines.  The Tribunal is satisfied that she holds a permanent resident visa which is valid for a further two years.

23. The Tribunal accepts the visa applicant is in receipt of a regular salary and that she is able to pay for her travel to Australia.  She is proposing a very short visit to Australia and the Tribunal is satisfied that she will not work or engage in study or training in Australia during the proposed period of travel.  The Tribunal is satisfied that she will comply with conditions 8101 and 8201 if she is granted a Visitor visa.

24. The visa applicant has a secure job with career advancement opportunities, a steady boyfriend to whom she will likely become engaged and parents and a sister who all presently reside in the Philippines.  The Tribunal is satisfied the visa applicant has strong incentives to return to the Philippines after a short visit to Australia.

25. Additionally, the visa applicant, and indeed the entire family, have a positive Australian migration history and the Tribunal has placed weight on their compliance with Australia’s immigration laws. 

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

27. The Tribunal can see no reason why the visa applicant would overstay a Visitor visa taking account of all the above considerations.   The Tribunal is satisfied she will comply with conditions 8503 and 8531 if she is granted the visa. 

28. 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

29. 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.

    Tania Flood
    Member