CHIN (Migration)

[2018] AATA 5946

CHIN (Migration) [2018] AATA 5946 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MING KONG CHIN

CASE NUMBER:  1727326

DIBP REFERENCE(S):  BCC2017/3789951

MEMBER:Fiona Meagher

DATE:5 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 05 June 2018 at 4:38pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream –genuine temporary entrant – student visa cancelled for non-compliance – intention to study further or apply for working visa – no adequate funds to support himself – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

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 19 October 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 16 October 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 Tourist 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 the delegate did not accept that the applicant intends to stay temporarily in Australia for the purpose of genuine tourist activities.

5. The applicant appeared before the Tribunal on 5 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by his registered migration agent. The representative did not attend the hearing

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 seeks the visa for the purposes of travelling around Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

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 (cl.600.211 (a)).

11. A copy of the delegate’s decision was provided to the Tribunal by the applicant, and referred to the fact that the applicant’s last substantive visa was a student Visa granted on 24 February 2017. The delegate’s decision indicates that the review applicant requested cancellation of his certificate of enrolment (related to the student Visa) on 6 March 2017. No other steps were taken in relation to that Visa. As departmental records indicated that the applicant had not been enrolled in a registered course of study since 6 March 2017, the student Visa was cancelled on 17 October 2017 on the basis that the applicant had not complied substantially with the conditions to which the last substantive visa was subject.

12. The Tribunal explored the circumstances of the student Visa cancellation with the applicant. His evidence was that he attended an English school for about two months, but found that it was too difficult to maintain attendance because it was too far from his house. He said that he asked his lawyer to find him a closer school but that the cancellation occurred before that happened. The Tribunal observes that it is unlikely that the applicant attended school for two months, given that he asked for his enrolment to be cancelled less than two weeks after the grant of his student Visa. The Tribunal places significant weight upon the fact that the applicant did not comply with the conditions of his last substantive visa.

13. The Tribunal discussed other aspects of the applicant’s visa history with him. The applicant told the Tribunal that he had initially come to Australia about 10 years ago. On this occasion the applicant said that he has been in Australia for about two years. He initially came on a visitor visa for three months. Whilst on that visitor visa he applied for the student Visa, (which is a referred to in the paragraphs above). Since the cancellation of the student Visa he has been on a bridging Visa. Accordingly the applicant has been in Australia on a bridging Visa since 17 October 2017.

14. The Tribunal asked the applicant what his current purpose is in applying for a visitor visa. He said that he wants to have a holiday. He said that his family really liked Australia and that he might ask them to come and have a holiday with him. He also said that if this visitor visa is granted he would like to keep studying and if he can’t study his aunt and uncle are old, his uncle has had three bypass surgeries, and their intention is to provide a work sponsorship for him.

15. The applicant said that since October 2017 he has been staying at home with his aunt and her family because he was appealing against the decision. He said he did not dare to do anything because he was worried that a decision might be made not to allow him to stay in the country and he might have to leave immediately. When asked by the Tribunal as to how he had supported himself he said that he had brought money with him when he came two years ago, and that while on a student Visa he had worked. Since being on a bridging Visa, the applicant told the Tribunal that he had stayed with his family (that is his aunt and her family) who had provided him with transport, and who own their own restaurant in Australia, so he had no need to spend any money whilst being on it.

16. The Tribunal asked the applicant about his own family. He said that he has three sons and a wife who live in Malaysia. When asked by the Tribunal whether he had missed them, he responded that they had come to Australia on holidays during his current stay. He said that his parents are still alive and live in China.

17. 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) (3) (4)):  

    ·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.

18. Based on the evidence given by the applicant, the Tribunal is not satisfied that the applicant will not work in Australia – he is wholly reliant, on his own evidence, on the goodwill of his family. There was no evidence before the Tribunal that the applicant has been supported wholly by his aunt’s family nor as to whether he had or has access to any funds of his own, nor any proposal as to how he would pay for a future stay.

19. Further, the Tribunal notes that the applicant states that he would like to engage in further study in Australia, and that he is hoping to apply for a sponsored work Visa at his aunt and uncle’s restaurant. There is no independent or documentary evidence before the Tribunal regarding future study by the applicant, nor regarding the possibility of sponsorship for another class of Visa by his aunt and uncle.

20. None of those intentions are compatible neither with a genuine intention to stay temporarily in Australia nor with an intention to comply with the conditions attached to the Visa.

21. Further, factors which ordinarily would be regarded as factors which might weigh in favour of the applicant returning to his country of origin, such as the existence of family there, do not in this case apply, as they have already visited him in Australia, and he has stated that he likely to organise that again.

22. As well, the Tribunal is not satisfied that the applicant has adequate funds or access to adequate funds to support himself during the period of his stay in Australia.

23. The Tribunal asked the applicant whether there are any other factors that should be taken into consideration. He stated that there were none.

24. 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

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

    Fiona Meagher
    Member